Moral Law 



AND 



Civil Law 



PARTS OF THE SAME THING 

/ 

By ELI F. RITTER 




NEW YORK : HUNT & EATON 
CINCINNATI: CRANSTON & CURTS 




Copyright by 
HUNT & EATON. 
1896. 



Composition, electrotyping, 
printing, and binding by 

Hint & Eaton, 
150 Fifth Ave., New York. 



PREFACE. 



BOUT twenty years ago, in an impor- 



/V tant trial in the city of Indianapolis, 
it was sought to break down the very 
strong testimony of a witness by showing 
that the general moral character of the 
witness was bad. It was not an attack 
upon the general reputation of the witness 
for truthfulness and veracity, but the in- 
quiry was directed to the general moral 
character of the witness. About the same 
time, in another case in the same court, 
upon the application of a man to be admit- 
ted to the bar, a question was raised upon 
his moral character. A few weeks later, in 
another case, in another court, in the same 
courthouse, upon an application of a man 
for a license to sell intoxicating liquors, an 
issue was made upon his moral character. 
In each of these cases witnesses testified on 




4 Preface. 

each side of the question. In each wit- 
nesses who testified to the good moral 
character of an individual on cross-exami- 
nation specified truthfulness, honesty, and 
some other elements of morality which 
were characteristic of the individual, but 
admitted defects in some of the moral 
elements of good character, while wit- 
nesses who testified to the bad moral 
character on cross-examination specified 
defects in the moral character of the indi- 
vidual and immorality in certain regards in 
support of a general statement of bad 
moral character. And another case was a 
suit on a promissory note in which a de- 
fense was successfully made that the note 
was given for an immoral and hence 
illegal consideration. I was, at the time 
when these cases were tried, a young 
practitioner at the bar. I was very deeply 
impressed in each case by the apparent 
uncertainty in the minds of witnesses as to 
what is meant in the law by moral charac- 
ter and morality ; not only the uncertainty 
in the minds of witnesses in these regards, 



Preface. | 

but also the manifest uncertainty in the 
minds of attorneys and judges in the same 
regard. On account of these exhibitions of 
uncertainty I became greatly confused in 
my own mind upon this subject. Lawyers 
and judges in each of these cases undertook 
to explain to witnesses what was meant by 
moral character and morality, and in doing 
so made it very clear that they had no 
more definite ideas upon the subject than 
the witnesses had. From my experience 
in the practice of law and other business 
and social relations since the trial of the 
cases to which I have referred, having seen 
the same questions often arise in the trial 
of cases in court, I have become satisfied 
that the general public has no definite idea, 
neither is there generally a clear under- 
standing among lawyers and judges, as to 
the meaning of "morality," ''moral char- 
acter," and " immorality" in legal contem- 
plation. Truthfulness, or business honesty, 
or generosity, in fact, every other term 
that is used in speaking of the characteris- 
tics of individuals, seems to be quite well 



6 



Preface. 



understood. Judges, lawyers, witnesses, 
and the public generally can deal with 
these terms with confidence in their under- 
standing, but when the question of legal 
morality is raised the minds of all at once 
become clouded. The question as to what 
is meant by the terms ''morality," or 
''moral character," or "immorality," is 
generally settled upon an assumed moral 
standard in a particular locality or the pecul- 
iar views of each individual. The impres- 
sion seems to largely prevail that this ques- 
tion may be settled by adding up the good 
qualities in one column, the bad in another, 
and striking a balance. This is a very 
dangerous process. I have known men of 
many most excellent qualities, but in one 
respect almost, or quite, totally depraved. 
Their good qualities were used to give 
them greater influence in the line of their 
depravity. 

There seems to be a fair degree of cer- 
tainty in the public mind generally as to 
the meaning of Christianity or Christian 
morality. The great uncertainty in the 



Preface. 



7 



meaning of these terms arises when they 
are used in legal contemplation. As moral- 
ity and moral character are terms in very 
prominent and constant use in judicial 
proceedings, they must have some definite 
meaning, and there must be some way of 
determining definitely what they do mean. 
The purpose of this book is to aid in set- 
tling these questions. I claim no new dis- 
covery in the meaning of terms, and what 
I should appreciate as the highest compli- 
ment that could be paid to this work would 
be to have it proved that what is claimed by 
the author for the legal contemplation of 
morality has been a settled question for a 
great many years. 

If I can succeed in calling attention to and 
aid in the correction of errors in the com- 
prehension and application of, this term, 
and aid in arousing sentiment in support of 
morality in the fundamental position it 
occupies in civil affairs, I shall have accom- 
plished my purpose and feel gratified. I 
have not undertaken to give exhaustive 
consideration to the subjects considered. 



8 



Preface. 



but to present and support them in the 
briefest possible way that I could do, put- 
ting the reader upon a line of investigation 
which can be pursued to great extent and 
profit. Eli F. Ritter. 

Indianapolis^ February 4, 1896. 



CONTENTS. 



CHAPTER I. 

Law of Public Necessity 1 1 

CHAPTER H. 

Morality is a Fundamental Principle in Civil Gov- 
ernment 24 

CHAPTER HI. 
What is Morality ? 47 

CHAPTER IV. 
What is Immorality? 66 

CHAPTER V. 
Legislation and Morality 77 

CHAPTER VI. 
Common Law and Morality 85 

CHAPTER VH. 

Morality in Civil Courts 89 

CHAPTER Vin. 
The Law Grows , loi 

CHAPTER IX. 
Evil Must Be Suppressed and Good Promoted 138 

CHAPTER X. 
No Privileges for Evil 166 



Moral Law and Civil Law 



PARTS OF THE SAME THING. 



CHAPTER I. 

LAW OF PUBLIC NECESSITY. 

THERE is a law now in full force in every 
State in this Union, in the govern- 
ment of the United States, and in every 
government in the world, that was hoary 
with the frosts of centuries when Moses 
bared his feet in the presence of the burn- 
ing bush, and that has ever since been the 
fundamental law in every government of the 
world. If you were to ask me for the book 
and page where this great law, with its full 
scope and specific provisions, might be 
found, I should not, neither would any other 
lawyer, be able to give them to you. I refer 
to the law of public necessity. This is not 
only an important law, but it is the supreme 
law of every government and every land. 
This law was defined and given its position 
in the Roman government before the begin- 



12 Moral Law and Civil Law 

ning of the Christian era in the following 
maxim, Salus Populi Suprema Lex,'' which 
is translated to-day into the English lan- 
guage by the expression, "The Public Wel- 
fare is the Supreme Law." While I may 
not be able to give you the scope and spe- 
cific provisions of this law, I may aid the 
reader in gaining fuller comprehension of 
the same by a few illustrations. 

When the city of Chicago was on fire in 
1 87 1 and had been for nearly two days, and 
the city government had become exhausted 
in its efforts to repress the flames and had 
acknowledged its defeat, and the State of 
Illinois stood paralyzed in the presence of 
the fire king, General Sheridan was placed 
in command, and became substantially the 
only governing force for the time being in 
that locality. General Sheridan was the 
man to meet the demands of an emergency. 
He did not stop to ask the lawyer of Chi- 
cago what he could do, nor the business men 
what was expected of him. He proceeded 
to do what the necessity of the occasion re- 
quired. He placed powder in the basements 
of a row of buildings two squares long, and 
at a given signal blew up and utterly de- 
stroyed the buildings, with their contents. 



Parts of the Same Thing. 13 



Those buildings and their contents were 
private property. Individuals held the title. 
The owners were not asked to consent, and 
their objections were unheeded. Their 
property was destroyed, and there was no 
provision of law by which any compensation 
could be recovered. This action was author- 
ized and justified by the law of public neces- 
sity. 

A few years ago a railroad train, loaded 
with passengers, leaving a Southern city, 
was stopped in a rural locality, run on to a 
switch, and compelled to stand still for two 
weeks without allowing any passenger to 
leave. This interference with the rights of 
the passengers, and their imprisonment, was 
justified under a public necessity to prevent 
the spread of yellow fever. 

A few years ago officers of the law went 
to the residence of a prominent citizen of 
Philadelphia, and informed him that they 
were ordered to convey his wife to the pest- 
house because she was afflicted with small- 
pox. He did not consent, claiming that he 
had made ample provision for her care and 
the prevention of any public hazard on ac- 
count of her disease. Regardless of his re- 
sistance, his wife was taken out of bed by 
2 



14 Moral Law and Civil Law 

force, and carried away to the pest hospital. 
The husband followed the ambulance to the 
door of the hospital and asked to be ad- 
mitted, that he might be with his wife in 
her sickness, but he was refused. That 
man's wife died — he never knew when — and 
was buried — he never knew where . If there 
is any right among men more sacred than 
all others, it is the right to be with and care 
for members of our own families in time of 
sickness, to stand by them in the hour of 
death, and to bury them in a place selected 
by us for that purpose, where the last rest- 
ing place may be marked and visited. Yet 
that most sacred of all rights has not a 
feather's weight when it comes in conflict 
with the law of public necessity. 

In 1863 the government of the United 
States needed men for military duty. A 
draft was ordered in Indiana to meet the 
emergency, and to add to the thousands of 
her sons who were already in the field as 
volunteers. Among those who were drafted 
was a poor man in southern Indiana. When 
notified, he said: ''Surely the government 
will not make me leave my feeble wife and 
three little children and go into the army. 
I have no way of providing for them while 



Parts of the Same Thing. 15 

I am gone, and I have no money to hire a 
substitute." However touching such an 
appeal might be, it could not be regarded. 
He was compelled to leave that family 
mainly to the care of neighbors, was forced 
into the army and on to the field of battle. 
At night, after the first day of that bloody 
battle of Chickamauga, among the dead 
bodies brought together was found the 
mangled and lifeless body of the poor con- 
script. As his comrades looked into the 
glassy eyes and pallid face, and thought of 
the poor, sick wife and little children in 
their helpless condition, they said, ' ' It was a 
hard thing that the government required of 
this poor man." But when the government 
has battles to fight, neither inconvenience, 
personal hazard, nor the needs of a family 
can excuse any man from its call to arms. 

A citizen of Indianapolis a few years ago, 
who possessed all the privileges and rights 
that any other citizen in the city possessed, 
was suddenly arrested, tried, convicted, con- 
demned, and on a day fixed for that purpose 
was compelled to ascend a scaffold, a rope 
was adjusted about his neck, his hands and 
feet were tied, the platform on which he 
stood was sprung, and he was strangled to 



1 6 Moral Law and Civil Law 



death. While the lifeless body of that man 
hung suspended between the heavens and 
the earth, an opportunity was offered to 
philosophize on the rights of an individual. 
An execution was issued upon the judgment 
rendered in his case, for costs, and every 
dollar's worth of property he had in the 
world was sold, and the proceeds applied to 
pay the expenses of the judicial proceedings 
that ended with the taking of his life. He 
had been deprived of all his rights of prop- 
erty, liberty, the pursuit of happiness, and 
life itself. All this because he had violated 
a law of public necessity, made in the inter- 
est and for the protection of society. It is 
true this proceeding was under a statute, 
yet such a proceeding would have been law- 
ful if there had been no statute, being 
authorized by the common law of every 
government, and existed in the day when 
Haman was hanged by order of Ahasuerus. 

The officers of the law may enter my 
house, and analyze the water in my well, 
and say to me that the water has in it the 
germs of disease, and that I must not use it 
— neither myself nor my family — nor permit 
anyone else to use it. I may answer : ' ' This 
is my property ; I had that well dug ; we 



Parts of the Same Thing. 17 

have used that water for twelve years. I 
like it, and this is a free country." Never- 
theless, if I disregard the injunction, I may 
be arrested, fined, and imprisoned, and that 
well — that poison fountain — filled to the 
brim to prevent the spread of disease, and 
I may be compelled to pay the expenses of 
all these proceedings. They may examine 
the milk in the pantry, and destroy it be- 
cause it is unhealthful. All this is under 
the law of public necessity, to prevent the 
spread of disease. There will be no conflict 
upon the proposition, that anyone with his 
whole family may be absolutely restrained 
from using food, milk, or drinking water 
that is unhealthful. When the question is 
settled that a food or a fluid is unhealthful 
the law of public necessity asserts that it 
shall not be used. It would not be difficult 
to find illustrations of this principle in 
every State and in every government. The 
law of public necessity is only limited by 
the necessity itself. Whatever the pub- 
lic necessity requires to be done can be 
legally done anywhere. It is not conceiv- 
able that there should be a public neces- 
sity and no law to meet it, and the public 
be thereby left helpless. It can be readily 



1 8 Moral Law and Civil Law 



seen that no individual can assert a personal 
right against the law of public necessity. 
There is no such things and never was, as an 
absolute individual right to do any particular 
thing, or to eat or drink any particular thing, 
or to enjoy the associations and bliss of one' s own 
family, or to live, in conflict with the law of 
public necessity. 

The law of public necessity demands that 
everything which it requires to be done 
shall be done. It also, with the same au- 
thority, commands that everything which it 
requires not to be done shall not be done. 
I present another phase of this law by illus- 
trations. Sees. 4569 and 4570, revised stat- 
utes of the United States, applying to every 
vessel that flies the flag and claims the pro- 
tection of this government, read as follows : 
Sec. 4569. ''Every vessel belonging to a 
citizen of the United States, bound from a 
port in the United States to any foreign 
port, or being of the burden of seventy-five 
tons or upward, and bound from a port on 
the Atlantic to a port on the Pacific, or vice 
versa, shall be provided with a chest of medi- 
cines; and every sailing vessel bound on a 
voyage across the Atlantic or Pacific Ocean, 
or around Cape Horn, or the Cape of Good 



Parts of the Same Thing. 19 

Hope, or engaged in tlie whale or other fish- 
eries, or in sealing, shall be provided with, 
and cause to be kept, a sufficient quantity of 
lime or lemon juice, and also sugar and 
vinegar, and other antiscorbutics, to be 
served out to every seaman as follows : The 
master of every such vessel will serve the 
lime or lemon juice, and sugar and vinegar, 
to the crew within ten days after the salt 
provisions mainly have been served out to 
the crew, and as long afterward as such 
consumption of salt provisions continues; 
the lime or lemon juice and sugar daily at 
the rate of half an ounce each per day ; and 
the vinegar weekly at the rate of half a pint 
per week for each member of the crew." 

Sec. 4570. ''If on any such vessel, such 
medicines, medical stores, lime or lemon 
juice, or other articles, sugar and vine- 
gar, as are required by the preceding sec- 
tion, are not provided and kept on board 
as required, the master or owner shall be 
liable to a penalty of not more than five 
hundred dollars ; and if the master of any 
such vessel neglects to serve out the lime or 
lemon juice, and sugar and vinegar, in the 
case and manner directed, he shall for each 
such offense be liable to a penalty of not 



20 Moral Law and Civil Law 

more than one hundred dollars ; and if any 
master is convicted for either of the offenses 
mentioned in this section, and it appears 
that the offense is owing to the default of 
the owner, such master may recover the 
amount of such penalty, and the costs in- 
curred by him, from the owner." 

It will be readily seen that these sections 
require that the supplies therein named shall 
be provided, and issued, and used. 

This law has been enforced, and convic- 
tions and penalties adjudged under it, in a 
number of cases. About three years ago 
the captain of a vessel was brought before 
the United States Court in San Francisco, 
charged with failing to issue lime juice, of 
which he had a supply, upon a voyage just 
ended. He answered, admitting the charge, 
but saying that the men had asked for an 
extra ration of coffee instead of lime juice, 
and as he saw no necessity for the lime juice, 
he yielded to the wishes of the men. The 
court held that the officer was not made the 
judge of the necessity for issuing the lime 
juice ; the law was peremptory, and it must 
be obeyed ; and the officer was fined. How- 
ever, as he had acted from good intention, 
his fine was merely nominal. 



Parts of the Same Thing. 21 



The legal question has been settled in 
this country, that any government, having 
jurisdiction, may require children or adults 
to submit to vaccination in order to prevent 
the spread of smallpox. 

If the government of the United States, 
for the protection of the community on a 
great steamer that numbers its crew by the 
hundreds and its passengers by the thou- 
sands, or the little whaler that has a few 
persons on board, may require that lime 
juice, onions, or other specific shall be pro- 
vided and used to meet the needs of, and to 
protect, such community on the high seas, 
and a government may require vaccination 
for like purpose on the land, then the United 
States government, or any other govern- 
ment, may make the same, or any, provisions 
and requirements for such communities on 
the land as public necessity may require in 
any case. Upon these illustrations I pre- 
sent the proposition, tJiat there is no individual 
right to refuse to eat, or to drink, or to do any 
particular thing, or all things, that the public 
necessity may require. 

We citizens may as well get ourselves in 
readiness to abstain from eating food, drink- 
ing water or milk, or any other fluid, or from 



22 Moral Law and Civil Law 

doing any and every thing that may be con- 
demned by public necessity ; and also hold 
ourselves in readiness to drink lime juice, 
eat onions, or any other specific, or do any- 
thing that may be required of us by the law 
of public necessity. 

In Town of Lake View vs. Rose Hill 
Cemetery Co., the Supreme Court of Illinois 
defined the police power to be : The law 
of overruling necessity." 70 111., R. 191. 
This brief definition of police power is 
fully sustained by authority. 

Some one may say that if these propo- 
sitions of law are correct, then civil govern- 
ment, at best, is legalized tyranny. Let us 
not misapprehend the effect of these propo- 
sitions ; let us bear in mind that the govern- 
ment must seek to promote the public wel- 
fare. In so doing, hardships may sometimes 
come to the innocent, and of necessity 
transgressors must be treated as outlaws, and 
pursued with relentless justice, that civil 
government, public health, public peace, 
morality, and good order may be protected ; 
that the weak may be sheltered from the 
oppressor; that good citizenship may be 
encouraged and bad citizenship suppressed. 

In this chapter I have been endeavoring 



Parts of the Same Thing. 23 

to present the rigid rules and extreme re- 
quirements of the law of public necessity. 
I have done this to meet the prating on per- 
sonal liberty and individual rights so com- 
mon in the mouths of American citizens 
with foreign ideas, and of political dema- 
gogues for personal ends. It is remarkable 
and amazing that these classes of persons 
have had such influence as to secure large 
acquiescence in their claims, and such hesi- 
tancy in exposing their fallacies. It should be 
borne in mind that rules of law are founded 
on the same principle as the yardstick, the 
bushel measure, and scales. It may be a 
great restraint sometimes on personal liberty 
and individual rights to give thirty-six 
inches for a yard, full measure for a bushel, 
twelve or sixteen ounces for a pound, or to 
regard the golden rule as a citizen, but the 
requirement and the obligation cannot yield 
to accommodate the ignorance, whim, or vice 
of the individual. The observance of these 
things is the pleasure of the honest man and 
the good citizen. The intelligent and the 
patriotic man will notbe misled by falsestate- 
ments as to facts, nor fallacious arguments, 
nor expect good results from the application 
of false principles. 



24 Moral Law and Civil Law 



CHAPTER II. 

MORALITY IS A FUNDAMENTAL PRINCIPLE IN 
CIVIL GOVERNMENT. 

I HAVE attempted to show in the former 
chapter that public necessity is law. If 
there were no necessity for law there 
would be no law. This is true both as to 
moral and civil law. The term, civil law, 
is used for convenience, intending thereby 
in this work to comprehend civil and crim- 
inal law under the same head. There is no 
place nor condition where moral law does 
not obtain, and there is no place nor con- 
dition where the duty is to civil law only. 
The greatest object and purpose of civil gov- 
ernment under our civilization is to pro- 
mote and enforce good morals in the trans- 
actions and relations of its citizens. In 
carrying out the necessities of government 
and working out the principles of public 
necessity, morality is made a fundamental 
principle. Upon this proposition I quote 
the constitutional provisions that have been 
adopted by many of the States of the United 
States. 



Parts of the Same Thing. 25 

In the Constitution of Indiana, 185 1, Art. 
8, Sec. I, is as follows: 

" Knowledge and learning generally dif- 
fused throughout a community- being es- 
sential to the preservation of free govern- 
ment, it shall be the duty of the General 
Assembly to encourage, by all suitable 
means, moral, intellectual, scientific, and 
agricultural improvements, and to provide 
by law for a general and uniform system 
of common schools, where tuition shall be 
without charge and equally open to all." 

Arkansas. Art. 2, Sec. 25, Constitution 
1874: 

''Religion, morality, and knowledge be- 
ing essential to good government, the Gen- 
eral Assembly shall enact suitable laws to 
protect every religious denomination in the 
peaceable enjoyment of its own mode of 
public worship." 

California. Art. 9, Sec. i. Constitution 
1879: 

* 'A general diffusion of knowledge and in- 
telligence being essential to the preservation 
of the rights and liberties of the people, the 
LegivSlature shall encourage by all suitable 
means the promotion of intellectual, scien- 
tific, moral, and agricultural improvements." 



26 Moral Law and Civil Law 



Connecticut. Art. 7, Sec. i, Constitution 
1818: 

' ' It being the duty of all men to wor- 
ship the Supreme Being, the great Creator 
and Preserver of the universe, and their 
right to render that worship in the mode 
most consistent with the dictates of their 
consciences, no person shall by law be com- 
pelled to join or support," etc. 

North Dakota. Art. 8, Sec. 147, Consti- 
tution 1869: 

' ' A high degree of intelligence, patriot- 
ism, integrity, and morality on the part of 
every voter in a government by the people 
being necessary in order to secure the con- 
tinuance of that government and the pros- 
perity and happiness of the people, the 
Legislative Assembly shall make provision 
for the establishment and maintenance of a 
system of public schools which shall be 
opened to all children of the State of North 
Dakota, and free from sectarian control." 

Sec. 149: "In all schools instruction 
shall be given as far as practicable in those 
branches of knowledge that tend to impress 
upon the mind the vital importance of truth- 
fulness, temperance, purity, public spirit, 
and respect for honest labor of every kind." 



Parts of the Same Thing. 27 



Delaware. Art. i, Sec. i, Constitution 
1831: 

" AlthougTi it is the duty of all men fre- 
quently to assemble together for the public 
worship of the Author of the universe, and 
piety and morality, on which the prosperity 
of communities depends, are thereby pro- 
moted, yet no man shall or ought to be com- 
pelled to attend any religious worship, to 
contribute against his own free will and 
consent." 

Florida. Sec. 5, Declaration of Rights, 
Constitution 1885 : 

" The free exercise and enjoyment of re- 
ligious professions and worship shall for- 
ever be allowed in this State, and no person 
shall be rendered incompetent as a witness 
on account of his religious opinions ; but the 
liberty of conscience hereby secured shall 
not be so construed as to justify licentious- 
ness or practices subversive of, or incon- 
sistent with, the peace or moral safety of the 
State or society." 

Kansas. Art. 6, Sec. 2, Constitution 1859: 

' ' The Legislature shall encourage the pro- 
motion of intellectual, moral, scientific, and 
agricultural improvement, by establishing a 
uniform system of common schools, and 



28 Moral Law and Civil Law 



schools of a higher grade, embracing nor- 
mal, preparatory, collegiate, and university 
departments." 

Maryland. Art. 43, Declaration of Rights 
1867: 

' ' That the Legislature ought to encourage 
the diffusion of knowledge and virtue, the 
extension of a judicial system of general 
education, the promotion of literature, the 
arts, sciences, agriculture, commerce, and 
manufactures, and the general amelioration 
of the condition of the people. 

Art. 30 provides that no person shall 
be molested on account of his religious pro- 
fession, unless under the color of religion 
he shall disturb the good order, peace, or 
safety of the State, or shall infringe the laws 
of morality." 

Massachusetts. Art. 1 1 of the Amend- 
ments, Declaration of Rights : 

" As the public worship of God and in- 
struction inpiety, religion, and morality pro- 
mote the happiness and prosperity of a peo- 
ple and the security of a republican govern- 
ment, therefore the several religious socie- 
ties of the commonwealth shall have the 
right to elect their pastors, contract with 
them for their support, raise money to erect 



Parts of the Same Thing. 29 



and repair houses for public worship," 
etc. 

Art. 18, Declaration of Rights: 

frequent recurrence to the funda- 
mental principles of the Constitution, and a 
constant adherence to those of piety, justice, 
moderation, temperance, industry, and fru- 
gality, are absolutely necessary to preserve 
the advantages of liberty and to maintain 
a free government. The people ought, 
consequently, to have a particular attention 
to all those principles in the choice of their 
officers and representatives, and they have a 
right to require of their law givers and mag- 
istrates an exact and constant observance 
of them in the formation and execution of 
the laws necessary for the administration of 
the commonwealth." 

Chap. 5 of the Constitution, Sec. 2 : 
^' Wisdom and knowledge, as well as vir- 
tue, diffused generally among the body of 
the people, being necessary for the preser- 
vation of their rights and liberties, and as 
these depend on spreading the opportunities 
and advantages of education in the various 
parts of the country and among the different 
orders of the people, it shall be the duty of 
the Legislatures and magistrates to cherish 

3 



30 Moral Law and Civil Law 



the interests of literature and the sciences, 
. . . to countenance and inculcate the 
principles of humanity and general benevo- 
lence, public and private charity, industry 
and frugality, honesty and punctuality in 
their dealings ; sincerity, good humor, and 
all social affections and generous sentiments 
among the people." 

Michigan. Art. 13, Sec. 1 1 , Constitution 
1850: 

* ' The Legislature shall encourage the pro- 
motion of intellectual, scientific, and agri- 
cultural improvements. ..." 

Mississippi. Art. 8, Sec. 201, Constitu- 
tion 1890: 

' ' It shall be the duty of the Legislature 
to encourage by all suitable means the pro- 
motion of intellectual, scientific, moral, and 
agricultural improvement, by establishing a 
uniform system of free public schools, by 
taxation or otherwise, for all children be- 
tween the ages of five and twenty-one years, 
and as soon as practicable to establish 
schools of higher grade." 

Missouri. Art. 11, Sec. i, Constitution 
1875: 

' ' A general diffusion of knowledge and 
intelligence being essential to the preserva- 



Parts of the Same Thing. 31 



tion and the rights and liberties of the peo- 
ple, the General Assembly shall establish 
public schools." 

Nebraska. Art. i, Sec. 4, Constitution 
1875: 

* ' All persons have a natural and inde- 
feasible right to worship Almighty God 
according to the dictates of their own con- 
sciences. No person shall be compelled to 
attend, erect," etc. ''Religion, morality, and 
knowledge, however, being essential to good 
government, it shall be the duty of the Leg- 
islature to pass suitable laws to protect every 
religious denomination in the peaceable en- 
joyment of its own mode of public worship, 
and to encourage schools and the means of 
instruction." 

New Hampshire. Art. 6, Bill of Rights : 
As morality and piety rightly grounded 
on evangelical principles will give the best 
and greatest security to government, and 
will lay on the hearts of men the strongest 
obligations to due subjection, . . . the peo- 
ple of the State have a right to empower, 
and do hereby fully empower, the Legislature 
to authorize from time to time the several 
towns, parishes, bodies corporate, or reli- 
gious societies within this State, to make 



♦ 



32 Moral Law and Civil Law 

adequate provision for the support and main- 
tenance of public Protestant teachers of 
piety, religion, and morality." 
North Carolina. Art. i. Sec. 29: 
' ' A frequent recurrence to fundamental 
principles is absolutely necessary to preserve 
the blessings of liberty." 
Art. 9, Sec. i : 

' ' Religion, morality, and knowledgebeing 
necessary to good government and the hap- 
piness of mankind, schools and means of 
education should forever be encouraged." 

Ohio. Art. i. Sec. 7, Constitution 1851: 
. . Religion, morality, and knowledge, 
however, being essential to good govern- 
ment, it shall be the duty of the General 
Assembly to pass suitable laws to protect 
every religious denomination in the peace- 
able enjoyment of its own mode of public 
worship, and to encourage schools and the 
means of instruction." 

Rhode Island. Art. 12, Sec. i, Constitu- 
tion 1 842 : 

The diffusion of knowledge, as well as 
of virtue, among the people being essential 
to the preservation of their rights and liber- 
ties, it shall be the duty of the General As- 
sembly to promote public schools, and to 



Parts of the Same Thing. 33 



adopt all means which they may deem to be 
necessary and proper to secure to the people 
the advantages and opportunities of educa- 
tion." 

Tennessee. Art. 11, Sec. 12, Constitu- 
tion 1870: 

Knowledge, learning, and virtue being 
essential to the preservation of republican 
institutions, and the diffusion of the oppor- 
tunities and advantages of education through- 
out the different portions of the State being 
highly conducive to the promotion of this 
end, it shall be the duty of the General As- 
sembly, in all future periods of this govern- 
ment, to cherish literature and science. 

M 

Vermont. Chap, i. Art. 3, 1793: 
" . . . Nevertheless, every sect or denom- 
ination of Christians ought to observe the 
Sabbath or Lord's Day, and keep up some 
sort of religious worship, which to them 
shall seem the most agreeable to the re- 
vealed will of God." 

Virginia. Art. i, Sec. 17, Bill of Rights: 
* * That no free government nor the bless- 
ing of liberty can be preserved to any peo- 
ple but by a firm adherence to justice, 
moderation, temperance, and virtue, and by 



34 Moral Law and Civil Law 

a frequent recurrence to fundamental prin- 
ciples." 
Sec. i8: 

That religion, or the duty which we 
owe to our Creator, and the manner of dis- 
charging it can be directed only by reason 
and conviction, not by force or violence; 
and, therefore, all men are entitled to the 
free exercise of religion, according to the 
dictates of their consciences, and that it is 
the duty of all to practice Christian forbear- 
ance, love, and charity toward each other." 

West Virginia. Art. 3, Sec. 20, Bill of 
Rights 1872 : 

Free government and the blessings of 
liberty can be preserved to any people only 
by a firm adherence to justice, moderation, 
temperance, frugality, and virtue, and by a 
frequent recurrence to fundamental princi- 
ples." 

Art. 12, Sec. 12 : 

' ' The Legislature shall foster and encour- 
age moral, intellectual, scientific, and agri- 
cultural improvement, . . ." 

In the States where neither morality nor 
education are specifically referred to in their 
constitutional provisions, these matters are 
nevertheless recognized by legislative acts 



Parts of the Same Thing. 35 

and by decisions of their courts as funda- 
mental. Kentucky has no constitutional 
specification as to morality, but morality is, 
nevertheless, in her fundamental law. I 
cite a case in Kentucky to this effect. 

The Commonwealth vs. Douglas, re- 
cently decided by the Court of Appeals, and 
reported in 24th S. W. Reporter, 233, from 
which I quote : 

When we consider that honesty, moral- 
ity, religion, and education are the main 
pillars of the State, and for the protection 
and promotion of which government was 
instituted among men, it at once strikes the 
mind that the government, through its agen- 
cies, cannot throw off these trust duties by 
selling, bartering, or giving them away. 
The preservation of the trust is essential to 
the happiness and welfare of the benefici- 
aries, which the trustees have no power to 
sell or give away. If it be conceded that 
the State can give, sell, and barter any one 
of them, it follows that it can thus surrender 
its control of all, and convert the State into 
dens of bawdy houses, gambling shops, and 
other places of vice and demoralization, pro- 
vided the grantees paid for the privileges, 
and thus deprive the State of its power to 



36 Moral Law and Civil Law 

repeal the grants and all control of the sub- 
jects, as far as the grantees are concerned ; 
and the trust duty of fostering and protect- 
ing the honesty, health, order, and good 
morals of the State would be cast to the 
winds, and vice and crime would triumph in 
their stead. Now, it seems to us that the 
essential principles of self-preservation for- 
bid that the commonwealth should possess 
a power so revolting, because destructive of 
the main pillars of government. ..." 

The State of New York also has no spe- 
cific provision in her Constitution upon the 
subject of morality, but in the case of Stan- 
ton vs. Allen, 5 Denio (New York Report), 
434, the Court of Appeals in that State, said : 

. . . Sound morality is the corner stone 
of the social edifice — whatever disturbs that 
is condemned under the fundamental rule." 
These citations will be sufficient upon this 
matter, as I think there will be no contro- 
versy upon this subject. 

While Justinian the Great was Emperor 
of Rome, about A. D. 530, he called to his 
aid a number of men of the highest legal 
learning of his time, and undertook to com- 
pile and define the principles of law then 
recognized by his government. He did 



Parts of the Same Thing. 37 

more than all other men in the history of 
that great empire for the establishment of 
sound legal principles. In describing the 
work he undertook and accomplished, he 
says : 

When, therefore, by the assistance of 
the same eminent person, Tribonian, and 
that of other illustrious and learned men, we 
had compiled the fifty books, called Digests 
or Pandects, in which is collected the whole 
ancient law, we directed that these institu- 
tions should be divided into four books, 
which might serve as the first elements of 
the whole science of law. 

' ' In these books a brief exposition is given 
of the ancient laws, and of those also which, 
overshadowed by disuse, have been again 
brought to light by our imperial authority. 

Those four books of institute thus com- 
piled from all the institutes left us by the 
ancients, and chiefly from the commentaries 
of our Gains, both from his institute and 
his journal, and also from many other com- 
mentaries, were presented to us by the three 
learned men we have above named. We 
read and examined them, and have accorded 
to them all the force of our constitutions. 

Receive, therefore, with eagerness, and 



38 Moral Law and Civil Law 

study with cheerful diligence, these, our 
laws, and show yourself persons of such 
learning that you may conceive the flattering 
hope of yourselves being able, when your 
course of legal study is completed, to govern 
our empire in the different portions that 
may be intrusted to your care." 

Justinian's first definition is as follows: 
' ' Jurisprudence is the knowledge of things 
divine and human ; the science of the just 
and the unjust." 

In Paragraph 3, of Book I, he says : ' ' The 
maxims of the law are these: to live honestly; 
to hurt no one ; to give everyone his due." 

His whole system of laws was founded 
upon these principles. 

Blackstone, about one hundred and twen- 
ty-five years ago, undertook the great work, 
in imitation of Justinian, of compiling legal 
principles as recognized in the jurisprudence 
of England. In laying down the founda- 
tions of his work, using the terms ' ' Law of 
Nature " and Ethics " in the sense of moral 
law, he speaks as follows : 

' ' This will of his Maker is called the 
law of nature. For as God, when he cre- 
ated matter and endued it with a principle 
of mobility, established certain rules for the 



Parts of the Same Thing. 39 

perpetual direction of that motion ; so, 
when he created man and endued him with 
free will to conduct himself in all parts of 
life, he laid down certain immutable laws 
of human nature whereby that free will is 
in some degrees regulated and restrained, 
and gave him also the faculty of reason to 
discover the purport of those laws. 

' ' Considering the Creator only as a being 
of infinite power, he was able, unquestion- 
ably, to have prescribed whatever laws he 
pleased to his creature, man, however un- 
just or severe. But, as he is also a being of 
infinite wisdom, he has laid down only such 
laws as were founded in those relations of 
justice that existed in the natures of things 
antecedent to any positive precept. These 
are the eternal, immutable laws of good and 
evil, to which the Creator himself in all his 
dispensations conforms ; and which he has 
enabled human reason to discover, so far as 
they are necessary for the conduct of human 
actions. Such, among others, are these 
principles : that we should live honestly, 
should hurt nobody, and should render to 
everyone his due ; to which three general 
precepts Justinian has reduced the whole 
doctrine of law. 



40 Moral Law and Civil Law 

But if the discovery of these first prin- 
ciples of the law of nature depended only 
upon the due exertion of right reason, and 
could not otherwise be obtained than by a 
chain of metaphysical disquisitions, man- 
kind would have wanted some inducement 
to have quickened their inquiries, and the 
greater part of the world would have rested 
content in mental indolence and ignorance, 
its inseparable companion. As, therefore, 
the Creator is a being, not only of infinite 
power and wisdom, but also of infinite good- 
ness, he has been pleased so to contrive the 
constitution and frame of humanity that we 
should want no other prompter to inquire 
after and pursue the rule of right, but only 
our self-love, that universal principle of ac- 
tion; for he has so intimately connected, 
so inseparably interwoven, the laws of eter- 
nal justice with the happiness of each indi- 
vidual that the latter cannot be obtained 
but by observing the former; and if the 
former be punctually obeyed it cannot but 
induce the latter. In consequence of which 
mutual connection of justice and human 
felicity he has not perplexed the law of na- 
ture with a multitude of abstract rules and 
precepts, referring merely to the fitness or 



Parts of the Same Thing. 41 

unfitness of things, as some have vainly sur- 
mised ; but has graciously reduced the rule 
of obedience to this one paternal precept, 
* that man should pursue his own true and 
substantial happiness.' This is the founda- 
tion of what we call ethics (morality), or 
natural law. For the several articles into 
which it is branched in our system amount 
to no more than demonstrating that this or 
that action tends to man's real happiness, 
and, therefore, very justly concluding that 
the performance of it is a part of the law 
of nature ; or, on the other hand, that this 
or that action is destructive of man's real 
happiness, and, therefore, that the law of 
nature forbids it." 

" This law of nature, being coeval with 
mankind and dictated by God himself, is, of 
course, superior in obligation to any other. 
It is binding over all the globe, in all coun- 
tries, and at all times. No human laws are 
of any validity if contrary to this ; and such 
of them as are valid derive all their force 
and all their authority, mediately or imme- 
diately, from this original." 

Chancellor Kent, the distinguished Amer- 
ican commentator and law writer, begins his 
commentaries with the following statement : 



42 Moral Law and Civil Law 

When the United States ceased to be a 
part of the British empire, and assumed 
the character of an independent nation, they 
became subject to that system of rules 
which reason, morality, and custom has es- 
tablished among the civilized nations of 
Europe. ... 

" We ought not, therefore, to separate 
the science of public law from that of ethics 
or morality, nor encourage the dangerous 
suggestion that governments are not so 
strictly bound by the obligations of truth, 
justice, and humanity in relation to other 
powers as they are in the management of 
their own local concerns. States, or bodies 
politic, are to be considered as moral per- 
sons having a public will, capable and free 
to do right and wrong, inasmuch as they 
are collections of individuals, each of whom 
carried with him into the service of the 
community the same binding law of mo- 
rality and religion which ought to control 
his conduct in private life. The law of na- 
tions is a complex system composed of va- 
rious ingredients. It consists of general 
principles of right and justice, equally suit- 
able to the government of individuals in a 
state of natural equality and to the relation 



Parts of the Same Thing. 43 

and conduct of nations ; of a collection of 
usages, customs, and opinions the growth 
of civilization and commerce ; and of a code 
of conventional or positive law. In the ab- 
sence of these latter regulations the inter- 
course and conduct of nations are to be gov- 
erned by principles fairly to be deduced 
from the rights and duties of nations and 
the nature of moral obligations; and we 
have the authority of lawyers of antiquity, 
and of some of the first masters in the 
modern schools of public law, for placing 
the moral obligation of nations and of indi- 
viduals on similar grounds, and for consid- 
ering individual and national morality as 
parts of one and the same science." 

Sheldon Amos, M.A., Professor of Juris- 
prudence in the University College, Lon- 
don, Tutor to the Inner Temple of Juris- 
prudence, Civil Law, and International 
Law, in a work published in 1872, entitled 
Systeinatic View of the Science of Jurispru- 
dence, Vol. I, page 515, says: 

' ' The purpose of the law is to fortify and 
to maintain public morality, and not to 
create and invent it ; give solidity and per- 
manence to the essential relationship on 
which national life depends, and not to be 



I 

44 Moral Law and Civil Law 

the formation of their vital energy ; to se- 
cure for every man and woman for the cre- 
ation of rights and duties a clear and open 
space for unrestricted action, within which 
they are free to develop all their faculties 
without hindrance or intrusion from with- 
out ; and to uphold the security of such in- 
stitutions as the voluntary efforts of man- 
kind may devise or adopt, as seems to them 
best calculated to quicken or develop or 
invigorate the moral aspirations of the 
race." 

Dr. Francis Lieber was educated and re- 
ceived high cultivation in the schools of 
France. Among other works was his Man- 
ual of Political Ethics (morality), which he 
wrote and published in 1878. Chancellor 
Kent says, in approval of this work : ' ' Dr. 
Francis Lieber, in his Manual of Political 
Ethics, has shown with great force, and by 
the most striking and apposite illustrations, 
the original connections between right and 
morality, and the reason and the necessity 
for the application of the principles of eth- 
ics (morality) to the sciences of politics and 
administration of government. The work 
is excellent in its doctrines, and it is en- 
riched with various and profound erudition." 



Parts of the Same Thing. 45 

Bishop, for thirty years recognized in the 
United States as a standard authority on 
criminal law, in his work on that subject 
says. Sec. 495 : ''Morality, religion, and 
education are the three main pillars of the 
State and the substance of all private good. 
A community from which they are banished 
represents more than the gloom of original 
chaos. Therefore, they should be objects 
of primary regard by the law." 

Also, Sec. 500: ''But however uncer- 
tain may be the precise extent to which the 
common law protects Christianity, there is 
no question that it practically and fully 
cherishes the public morals. And it pun- 
ishes as a crime every act which it deems 
sufficiently evil and direct, tending to impair 
the public morals." 

The same author, in his works on con- 
tracts, enlarged edition, Sec. 505, says: 
' ' Prominent among the interests which the 
law protects are the public morals." 

The legal authorities here cited upon this 
proposition are taken from the various pe- 
riods of history reaching back to the begin- 
ning of the Christian era, and also univer- 
sally recognized as the leading authorities 
upon law and jurisprudence. I might add 
4 



46 Moral Law and Civil Law 

a large number and quote volumes to the 
same effect, but for the purposes of this 
work must content myself with the support 
thus given to the proposition that morality 
is a fundamental principle of civil govern- 
ment. I hazard nothing by saying that no 
legal authority of respectable standing can 
be found to the contrary. 



Parts of the Same Thing. 47 



CHAPTER III. 

WHAT IS MORALITY? 

I KNOW nothing about which there ex- 
ists in the public mind or the legal 
profession more uncertainty than there 
is concerning the word ''morality," in 
civil law. There are very few attorneys, 
whatever may be the length of their ex- 
perience or their standing in the profession, 
who would answer without hesitation or 
with confidence the question. What does the 
law mean by the word morality? It is 
most remarkable that a word so familiar, as 
old as the language, which is a translation 
of Latin and Greek terms, extending 
beyond the Christian era, a word which is 
used for the foundation stone of civil gov- 
ernment, should convey so vague and un- 
certain an idea to the public mind. This 
familiar word evidently has some meaning, 
represents some great and indispensable 
principle, is of the greatest importance, or 
else it would not have been so long in use 
and been given such remarkable prominence 



48 Moral Law and Civil Law 

in civil affairs. There is a very large and 
influential school of political teachers who 
insist that morality, whatever it means, 
should not be connected in any way with 
politics or legislation, asserting that men 
cannot be made moral by legislation. On 
the other hand there is a very large and in- 
fluential school that teaches that morality 
and religion are the same thing, who be- 
lieve in the union of Church and State, and 
that politics and legislation should provide 
for and control matters of religion. It will 
not be controverted that civil governments 
must contemplate, as do these United States, 
the protection of liberty in religious belief, 
and encourage religious worship as they do 
education and other subjects for the pur- 
pose of good influences that come from these 
things. These civil governments, however, 
cannot define and favor, or control, or re- 
strict, any special form of religious worship 
or belief. I am convinced that there is a 
general and prevailing uncertainty among 
the masses of people as to the distinction 
between matters of religion and morality. 
Out of this uncertainty comes a very dan- 
gerous sentiment creating the impression 
that as civil government cannot enforce mat- 



Parts of the Same Thing. 49 

ters of religion and forms of religious wor- 
ship, it cannot enforce matters of morality 
and moral conduct. 

Let me attempt to simplify from a legal 
standpoint the difference between religion 
and morality. Religion refers to the inner 
individual life and belief. Religion requires 
that a man should love his neighbor as him- 
self, but the civil law cannot compel him to 
do so, nor punish him if he does not. 
Morality requires a man to treat his neigh- 
bor honestly and fairly, and can compel him 
to do so, and punish him if he does not. 
Religion is a matter of belief ; morality is a 
matter of conduct. The law does not in- 
terfere with matters of belief, but does un- 
dertake to control matters of conduct. The 
legal distinction between religion and moral- 
ity is thus clearly presented without further 
discussion, so th^t no man need go astray. 
The words virtue, utility, ethics, and espe- 
cially the latter, have been largely considered 
and made subjects of many books, and have 
occupied the time and attention of great 
minds. In recent years the word ' ' altru- 
ism" has been suggestive as a theme for 
great attention and the expression of beau- 
tiful ideas. The science of sociology is just 



50 Moral Law and Civil Law 

now attracting wide attention and considera- 
tion. There seems to be a general timidity 
and hesitation in the use of the word moral- 
ity and the consideration of its scope and 
application. Upon careful consideration of 
all that has been written and said, and is 
being written and said, about this word and 
many words of like import, it will be seen 
that what is, in the main, contemplated and 
discussed under each and all of these names 
is the simple, common, old-fashioned sub- 
ject of morality, nothing more, but often 
something less. Why hunt for terms or 
words, why confuse counsel, why attempt 
to weaken the force of the good old word 
morality, by using vague, uncertain, feebler 
terms, that have never had, and never can 
have, a fixed and settled meaning? I come 
to plead for a fixed science, and no vagary. 

Paley, in his work on Moral and Politi- 
cal Philosophy, written more than one hun- 
dred and ten years ago, begins with the first 
sentence as follows : ' ' Moral philosophy, 
morality, ethics, and natural law mean all 
the same thing ; that science which teaches 
men their duty and the reason of it." 

I have gone through many volumes 
written upon the subjects just referred to, 



Parts of the Same Thing. 51 

seeking for a concise definition of morality, 
or tlie definition of its synonyms. I find 
these writers admitting great difficulty in 
giving the definition. I find them analy- 
zing the word, considering its component 
elements, and devoting much time to each 
of these, taking the word to pieces, and 
spending much time in defining, specifying, 
and explaining the nature and office of the 
pieces, and I must admit great disappoint- 
ment in finding that they fail to put the 
pieces back together, and tell us what the 
structure is. They give the component 
parts, but not the composition. If morality 
is a foundation stone or a pillar in the con- 
struction of the State, we certainly can lay 
our hands upon that corner stone or upon 
that pillar. The more books that have ap- 
peared upon this subject, the greater the un- 
certainty in the public mind. If there is 
such a thing as morality, we must be able 
to know what it is. If it cannot be defined, 
it cannot be understood ; if it has no stand- 
ard, it is not practical ; if it cannot be iden- 
tified, it is a myth. Theologians confuse it 
with religion, and lose sight of it in its civil 
character. Philosophers and metaphysicians 
tear it to pieces and fatigue the life out of 



52 Moral Law and Civil Law 

it, and often leave it so disfigured that its 
best friends cannot recognize it. We com- 
mon people of average intelligence want, 
and must have, some definition, concise, in 
plain English language, of this great subject 
that we can understand. We common peo- 
ple must have erected in our midst a stand- 
ard to which we may look and live, while 
we and our families are being bitten by 
these fiery serpents that are everywhere in 
society. It seems to me in this great emer- 
gency we must look to the civil law for in- 
formation and relief. In fact that is the 
source from which the information should 
and must come, when we seek the civil and 
legal standard of morality. Let it be borne 
in mind that morality is not religion. It 
has sometimes been said that men make 
their morality their religion, and expect to 
be saved by it. In such a case morality be- 
comes religion to the individual, and in it 
and by it he performs his acts of worship of 
some supreme being. Whether he can be 
saved thereby is no part of the subject I am 
now considering. Morality is for this life 
only. Morality is purely a civil condition ; 
refers to the citizen, to the individual in 
his relations to other people and society. 



Parts of the Same Thing. 53 

I propound the hard question, if it is so 
understood, for the purpose of answering 
the same, without evasion or equivocation 
— What is meant in Law by the word 

Morality? " 

In the case of Lyon vs. Mitchell, 36th N. 
Y., 235, the Court of Appeals, in a decision 
of a question properly before it, said : ' ' The 
defendant, I think, has no right to ask a 
charge that (as asked in the lower court) 
any contract which conflicts with the morals 
of the time is void, as being against public 
policy. To make such a contract thus void 
it must be against sound morals, as defined 
by Paley to be ' that science which teaches 
men their duty, and the reason of it' 
{^dX^y Moral Philosophy, B. i, C. i). ' Mo- 
\ rality is the rule which teaches us to live 
' soberly and honestly. It hath four chief 
' virtues — justice, prudence, temperance, and 
fortitude.' 

To make a contract void on the princi- 
ple claimed, it must be against morality as 
thus defined. The morals of the time may 
be vicious ; public sentiment may be de- 
praved ; the people may have gone astray 
so that not one good man can be found. 
Sound morals, as taught by the wise men of 



54 Moral Law and Civil Law 



antiquity, as confirmed by the precepts of 
the Gospel, and as explained by Paley and 
Horne, are unchanged. They are the same 
yesterday and to-day." 

This decision has been cited with ap- 
proval in New York a number of times and 
in subsequent decisions, and has never been 
criticised or rejected by the Supreme Court 
of any State, so far as I have been able to 
find. 

In the American and Ejtglish Encyclopedia 
of Law, Vol. XV, page 716, this definition 
of morality is quoted in the text as settled 
law, and this case is cited. 

In the case of Baltimore and Potomac 
Railway Co. vs. The 5th Baptist Church, 
108 U. S. Supreme Court Report, page 739, 
among other things in applying the rules of 
law in that case, the court said : 

' * Whatever the extent of the authority 
conferred, it was accompanied with this im- 
plied qualification, that the works should 
not be so placed as by their use to unrea- 
sonably interfere with and disturb the 
peaceful and comfortable enjoyment of 
others in their property. ' Grants of privi- 
leges or powers to corporate bodies like 
these in question confer no license to use 



Parts of the Same Thing. 55 

them in disregard of the private rights of 
others, and with immunity for their inva- 
sion. The great principle of the common 
law, which is equally the teaching of Chris- 
tian morality, to so use one's property as not 
to injure others, forbids any other application 
or use of the rights and powers conferred." 

The point distinctly presented in the 
decision last cited in the quotation I make 
from it, to which I call attention, is the 
declaration of the highest judicial tribunal 
in this land, that common law morality and 
Christian morality are the same. 

In Leiber on Penal Law, 2nd Lieber's 
Miscellaneous Works, 471, the author says: 

At common law, indictability and im- 
morality are convertible terms." 

In Wharton's Criminal Law, Vol. I, sec. 
140, the author quotes the foregoing expres- 
sion from Leiber, and modifies slightly the 
claim of Leiber by saying, ''There are some 
immoral acts which are not indictable, and 
some indictable acts which are not immoral ; " 
but he says : ''If we were required to sup- 
ply a further test, we might say that public 
policy demands the indictability of all im- 
moral acts of which punishment by law is 
the proper retribution." 



56 Moral Law and Civil Law 

In Wells's Pollock on Torts, American 
Edition, 1894, page 12, the author gives as 
the subject of a paragraph, Relation of 
the Law of Torts to the semiethical precept, 
^ Alterum non laedere ' (' Thou shalt do no 
harm to thy neighbor')." 

Discussing this subject, he says: ''We 
have then three main divisions of the law 
of torts. In one of them, which may be 
said to have a quasi criminal character, 
there is a very strong ethical, moral ele- 
ment. In another no such element is ap- 
parent. In the third such an element is 
present, though less, and manifestly so. 
Can we find any category of human duties 
that will approximately cover them all, and 
bring them into relation with any single 
principle? Let us turn to one of the best 
known sentences in the introductory chapter 
of the Institutes copied from a lost work of 
Ulpian : 'Juris percepta sunt haec ; honeste 
vivere alterum non laedere, suum cuique 
tribuere ' — ' The maxims of the law are 
these: Thou shalt live honestly. Thou shalt 
do no hurt to thy neighbor. Thou shalt give 
everyone his due ' ( ' Honeste vivere ') . ' Thou 
shalt live honestly' is a vague phrase enough. 
It may mean refraining from criminal of- 



Parts of the Same Thing. 57 

fenses, or possibly good behavior in social 
and family relations ('suum cuique tribuere') 
'Thou shalt give everyone his due' seems to 
fit pretty well with the law of property and 
contract. And what of ' alterum non lae- 
dere?' (' thou shalt do no hurt to thy neigh- 
bor.') Our law of torts, with all its irregu- 
larities, has for its main purpose nothing 
less than the development of this precept. 
This exhibits it, no doubt, as the technical 
working out of a moral idea by a positive 
law, rather than the systematic applica- 
tion of any distinctly legal conception. But 
all positive law must presuppose a moral 
standpoint, and at times more or less open- 
ly refer to it, and the more so in proportion 
as it has, or approaches to having, a penal 
character." 

In Laiv of Torts, by Piggott, page 208, on 
the subject of frauds he says: It will be 
noticed that we have ignored the distinction 
between legal and moral fraud sometimes 
drawn. ' I am of the opinion,' said Brom- 
well, L. J., in Weir vs. Bell (3 ex. D., 243), 
' that to make a man liable for fraud, moral 
fraud must be proved against him. I do 
not understand legal fraud. To my mind, 
it has not more meaning than legal heat or 



58 Moral Law and Civil Law 

leg-al cold, legal light or legal shade. There 
never can be a well-founded complaint of 
legal fraud, or of anything else, except 
where some duty is shown, and correlative 
right and some violation of that duty and 
right. . . In truth we are discussing 
the legal aspect of a moral question, and, 
as we have seen, the common law does prac- 
tically adopt the same standard as morality. 
The apparent exception to which ' legal 
fraud ' is sometimes attached is the lia- 
bility of the principal for the fraud of his 
agent ; but this may be rested on another 
moral ground. His claim to take advan- 
tage of his agent's fraud is in itself a moral 
fraud." 

Sheldon Amos, M.A., Professor of Juris- 
prudence in University of London, very 
high authority on any subject which he 
touches, from whom I have hereinbefore 
quoted, in a book entitled A Systematic View 
of the Science of Jurisprudence, on page 516 
says: 

' ' There exists somewhere a true and 
common canon, or standard of action, in- 
flexible in itself, and yet withal admitting 
of an easy adjustment and the most exquisite 
modulations for all members of society, 



Parts of the Same Thing. 59 



which the more habitually each member 
adopts, the vaster is the expansion of which 
his own nature is capable, and the less is 
the chance of the need of interruption to 
others ; and which the more habitually all 
men adopt, the more freely and harmoni- 
ously the general machinery of social inter- 
course works. This canon or standard of 
action is hard, indeed, to discover, and par- 
ticular societies may spend long ages in un- 
availing efforts to discover it. ... This 
canon or standard of action, including here 
under the term action all the thoughts and 
feelings that give it life and warmth, is ab- 
sokite morality. It is only the visible image 
of the mechanical scaffolding of this that is 
designated by the phrase, ' National law.' " 

When the law by its expansion and its 
nearer approach to the image of absolute 
morality becomes, as the author says, ' ' a 
mode of benevolent guidance and aid," 
then, as he continues, it " characteristically 
stands forth as the ever present and incarn- 
ate witness of that ultimate morality of 
which it is, at best, no more than the sym- 
bol and the counterpart." 

This distinguished author closes his work 
as follows : 



6o Moral Law and Civil Law 

' ' It is not then in law nor in government 
that hope must be placed for the direct cul- 
ture of a nation's vitality. It is in moral 
and spiritual efforts, whether expressed in 
salutary and silent influences or in highly 
systemized organizations. ... In a word, 
it is to these direct inspirers of human vir- 
tue and energy that law itself must turn in 
order to find at hand a race of citizens 
whose dearest concern will be to obey, to 
cherish, and to reform it." 

There seems to be a general impression 
abroad that the word ' ' morality " is a general 
term like the words "cattle" and horses," 
and that it includes many different varie- 
ties. Under this false idea morality, as ap- 
plied to the ministers of the Gospel, is one 
thing; to the teacher, another thing; to 
the attorney, another thing ; to the business 
man, another thing ; and to the applicant 
for license to sell intoxicating liquors, it is 
anything for his especial benefit. It is high 
time for earnest teaching to correct these 
errors in the public mind. Morality is like 
truth ; it has no varieties. It is the same 
thing in every place and relation ; whether 
it appears in the pulpit, in the business trans- 
action, in the court of justice, in the home, 



Parts of the Same Thing. 6i 

or in political affairs. It is one thing that 
cannot be adjusted to accommodate the ne- 
cessities of any man or any business. In the 
language of the highest court in the State 
of New York, heretofore quoted, but which I 
repeat because of the great value there is in 
the expression, ''Sound morals, as taught 
by the wise men of antiquity, as confirmed 
by the precepts of the Gospel, and as ex- 
plained by Paley and Horne, are unchanged. 
They are the same yesterday and to-day." 

Let it be fully understood that in legal 
contemplation, thoroughly settled. Christian 
Morality^ Statutory Morality, Constitutional 
Morality, Common Law Morality, Common 
Sense Morality, and Morality are all the same 
thing. Whenever, wherever, and in what- 
ever connection the word ''morality" is 
used, it means morality. If ever used in any 
other sense, it is improperly used. Simpli- 
fying the legal standard, it may be easily 
understood that the law considers questions 
of morality as governed by the golden rule. 

There is not any standard of religious 
creed. A man may profess any kind of re- 
ligious belief that is not immoral and does 
not violate any civil law. 

Mormonism was only unlawful so far as it 
5 



62 Moral Law and Civil Law 

was immoral, and its immorality consisted 
in recognizing the plurality of wives. 

There is a legal standard of morality up 
to which every man must come, and the 
standard is the same in every State. This 
is fixed and required, like standards of 
weights and measurements. The standards 
of weights and measurements might be 
changed, but the standard of morality can- 
not be. It has been settled and fixed as 
the work of all the learning, wisdom, and 
experience of the past, in fact, by a super- 
natural influence, and cannot be changed. 

Civil government, applying this standard 
to business affairs, will compel full measure- 
ment, full weight, full count, and that the 
goods come up to the sample. This is ab- 
solutely necessary to promote and protect 
business affairs. 

If civil government were to give its whole 
attention to the cultivation of the youth in 
high integrity in business affairs only, and 
the punishment of offenses against the rules 
of morality in this regard only, how long 
could it hold together? The social affairs of 
her citizens are of the most importance to 
the government, and are not to be neglected. 

A young man from a farm not many 



Parts of the Same Thing. 63 

years ago presented himself to the presi- 
dent of the Indiana State University, and 
said he had determined to become a public 
speaker, and had come to study grammar. 
The president asked him what else he de- 
sired to study. He said, ''Nothing else." 
The president said, " We cannot teach you 
grammar by itself. You must take other 
studies with it." The young man said, 
''Why, is not grammar in a book by itself?" 
The president said, ' ' Did you ever try on 
the farm at home to fatten only one quarter 
of a beef at a time?" He answered, "No; 
you cannot fatten a beef at all, unless you 
fatten it all together." The president said, 
' ' So you must fit yourself all together if you 
expect to meet your ambition." 

The government can only be safe when 
her citizens are developed and regulated by 
the moral standard as applied alike to busi- 
ness, educational, and social affairs. The 
leaders in strikes and mobs, who block and 
terrorize business, disregard morality in 
social affairs, and do not believe that mo- 
rality exists in business affairs, are the prod- 
ucts of false teachings on morality in civil 
affairs. 

It is more important to the government 



64 Moral Law and Civil Law 



that a citizen should be moral than that he 
should be religious, but religion is the great- 
est teacher upon the subject of morality. 
This is the reason why the law encourages 
religion and religious worship. 

It has been held in various States, es- 
pecially in Pennsylvania by her Supreme 
Court, that the Christian religion is a part 
of the law of the land, and that the system 
of morality as represented and defined by 
the Christian religion is the standard of 
morality in this nation. 

Paley combined, in one treatise, moral and 
political philosophy. He laid down the rigid 
rules of morality as they were in his day, and 
had been from time immemorial, and ever 
must be. Yet he has been charged by high 
authority with attempting to modify them a 
little to accommodate aristocratic influences. 

When the word " morality " was used in 
the Constitution of Indiana in 185 1, and 
made the first and most important subject 
upon which the Legislature is commanded to 
act, it must be presumed that it was so used 
in contemplation of its history and full 
meaning, not only as understood in 185 1, 
but also as its fullness and meaning shall 
appear in 195 1, and always. 



Parts of the Same Thing. 65 

It is my purpose to aid in correcting the 
impression that there are different kinds 
and standards of morality. 

There is only one kmd, and ojily one standard 
of morality^ known to the civil law. 

This is true in every State and by the laws 
of the United States. 

Then, when we speak of moral law and 
civil law, we mean parts of the same thing. 

Using commonplace terms, morality and 
moral character is each made of the follow- 
ing elements in equal parts : 

1 . Fair dealing in business and social life. 

2 . The exertion of a good influence in all 
relations ; and, 

3. Faithful obedience to the law. 

Every man knows either one of these ele- 
ments when he sees it, or hears it, or feels it. 
Every man, I mean every man who knows 
enough to exercise the privileges of citizen- 
ship in any form, in fact, knows full well what 
morality and moral character are in every 
other form except in legal contemplation. 
My purpose is to make clear and to emphasize 
the most important fact, that morality and 
moral character are exactly the same in legal 
contemplation as they are when viewed from 
any other established standpoint. 



66 Moral Law and Civil Law 



CHAPTER IV. 

WHAT IS IMMORALITY? 

IT may seem unnecessary to ask sucli a 
question. It may seem that this is a 
foolish question. However, my obser- 
vation leads me to believe that there is a very 
great uncertainty in the public mind upon 
this subject, especially as to the legal com- 
prehension of the word " immorality." Let 
it be kept in mind that I am considering 
every matter in this work from a legal stand- 
point only. I use Indiana as an illustration 
of what is true of every State in this gov- 
ernment. I must depend upon illustrations 
from this State, because to follow the sub- 
ject as it has run through all the States is 
unnecessary for the purpose of this work. 
The illustrations I shall use can be pursued 
by the citizens of any State, and would be 
foimd to apply as forcibly in any other State 
as in Indiana. 

The Legislature in Indiana has passed laws 
defining offenses, every one of which any 
candid person will admit is, independent of 



Parts of the Same Thing. 67 



civil laws, an immoral act. These offenses, 
which are essentially wrong and immoral, 
are forbidden by law as a public necessity. 
For the purpose of showing the extent to 
which our Legislature has gone I quote the 
subjects of criminal statutes in our State : 



Treason. 

Misprision of Treason. 
Murder in First Degree, 
Murder by Duel in the State. 
Murder by Duel Outside of 

the State. 
Murder in Second Degree. 
Manslaughter. 
Assault and Battery with 

Intent. 
Assault. 

Assault and Battery. 
Malicious Mayhem. 
Simple Mayhem. 
Robbery. 
Kidnapping. 
Child Stealing. 
Rape. 

Rape of Insane Women. 
Poisoning with Intent to 
Kill. 

Poisoning Springs, etc. 

Prescribing Medicines when 
Drunk. 

Prescribing Secret Medicine. 

Attempting to Procure Mis- 
carriage. 



Women Soliciting Medicine 

for Miscarriage. 
Libel. 

Blackmailing. 
Arson. 

BurningWoods,Prairies,etc. 
Burglary. 

Housebreaking in Daytime 
to Steal. 

Entering House, etc., to 
Commit Burglary. 

Housebreaking to Commit 
Violence. 

Petit Larceny. 

Receiving Stolen Goods. 

Secreting a Will. 

Stealing Public Records. 

Officer Stealing or Destroy- 
ing Records. 

Altering Records. 

Carrying off Fruits, etc. 

Trespass. 

Embezzlement of Public 
Funds. 

Embezzlement by Officers. 

Embezzlement by Em- 
ployees. 



68 Moral Law and Civil Law 



Embezzlement by Lawyers 
and Collectors. 

Embezzlement by Railroad 
Employees. 

Embezzlement by Innkeep- 
ers and Carriers. 

Embezzlement by Bailee. 

Embezzlement by Tenants. 

Embezzlement by Treasur- 
ers. ^ 

Embezzlement of Public 
Funds. 

Embezzlement of Fiduci- 
aries. 

Malicious Trespass. 

Selling and Secreting State 
Arms. 

Removing Mortgaged 
Goods. 

Injuring Telegraph or Tele- 
phone Poles or Wires. 

Running Hand Car without 
Authority. 

Obstructing RailroadTrack. 

Injuring Vines and Trees. 

Defacing Tombstones. 

Injuring Trees on Highway. 

Obstructing Highway. 

Cutting Shade Trees. 

Altering or Removing Land- 
marks. 

Defacing Legal Advertise- 
ments. 
Pasting Bills on Building. 
Altering Marks. 



Forcible Entry or Detainer. 
Defacing Library Books. 
Unauthorized Military Ex- 
pedition. 
Aiding Hostile Army. 
Privateering. 
Challenge to Duel. 
Dueling. 
Prize Fighting. 
Affray. 
Riot. 
Rout. 

Provocation. 

Drawing Dangerous Weap- 
on. 

Carrying Dangerous Weap- 
on. 

Furnishing Deadly Weapon 

to Minor. 
Disturbing Meetings. 
Bigamy. 
Incest. 

Adultery and Fornication. 
Seduction. 

Enticing Females to House 
of 111 Fame. 

Keeping House of 111 Fame. 

Public Indecency. 

Disposing of Obscene Lit- 
erature. 

Sending Obscene Litera- 
ture. 

Advertising Drugs for Fe- 
male Use. 
Profanity. 



Parts of the 



Same Thing. 69 



Sabbath Breaking. 
Houses of Assignation. 
Pimp. 

Prostitution. 

Letting Stallions in Public. 
Sodomy. 

Playing Baseball on Sun- 
day. 
Perjury. 

Perjury in Voluntary Affi- 
davit. 

Subornation of Perjury. 
Bribery of Public Officers. 
Bribery of Jurors. 
Compounding Felonies. 
Compounding Misdemean- 
ors. 

Compounding Prosecution. 
Concealing Criminals. 
False Personation. 
Producing False Heir. 
Substituting Child. 
Extortion. 

Judge Practicing Law. 
County Officer Practicing 
Law. 

Holder of Office Acting as 
Notary. 

Falsely Attesting Affidavit. 

Falsely Attesting Acknowl- 
edgment. 

Officer not Explaining In- 
strument. 

Notary Acting after Office 
Expires. 



Justice or Constable Pur- 
chasing Judgment. 

Suffering Capital Criminal 
to Escape. 

Suffering Felon to Escape. 

Aiding Prisoner to Escape. 

Aiding Convict to Escape. 

Aiding Prisoner to Escape 
from Jail. 

Suffering Person Charged 
with Misdemeanor to Es- 
cape. 

Obstructing Writ of Habeas 
Corpus. 

Obstructing any Legal Proc- 
ess. 

Convict Escaping from State 
Prison. 

Disobeying Subpoena for 
Citation. 

Corruptly Influencing Ju- 
rors. 

Suffering Jail to be Unclean. 

Cruelty to Poor. 

Official Negligence. 

Refusing to Aid Officer. 

Common Barrator. 

Usurpation of Office. 

Officer Acting without 
Qualifying. 

Intoxicated Officer. 

Keeping County Office in 
Improper Place. 

Officers Discounting Or- 
ders. 



JO Moral Law and Civil Law 



Extortion from Pensioners. 

Officer Interested in Public 
Contracts. 

Township Trustee Refus- 
ing to Pay Just Demand. 

Bribery of Officer. 

Auditor of State Drawing 
Warrant Illegally. 

StateOflicer notAccounting. 

ObstructingExamination of 
State Treasury. 

False Report as to Treasury 
of State. 

State Treasurer Paying Il- 
legally. 

State Treasurer Using False 
Voucher. 

Defalcation of State Treas- 
urer. 

Breaking Quorum in Com- 
mon Council. 

Breaking Quorum in Gen- 
eral Assembly. 

Neglect of Roads. 

Recording Deed without 
Transfer. 

Misfeasance of Clerk of 
Printing Bureau. 

Misfeasance of Inspector of 
Grain. 

Public Nuisance. 

Creating Stagnant Water. 

Nuisance by Dead Animals. 

Selling Unwholesome Pro- 
visions. 



Selling Diseased Animals. 
Selling Unwholesome Milk. 
Adulterating Native Wines. 
Adulterating Liquors. 
Making or Selling Poison- 
ous Liquors. 
Befouling Water. 
Selling Oleomargarine. 
Adulteration of Vinegar. 
Selling Uninspected Meat. 
Raffling. 

Lotteries and Gift Enter- 
prises. 

Advertising Lotteries. 

Betting and Pool Selling. 

Keeping Gaming Houses. 

Keeping Room for Pool 
Selling. 

Inducing Minors to Gamble. 

Gaming. 

Bunco-steering. 

Common Gambler. 

Keeping Devices for Gam- 
bling. 

Allowing Minors to Play at 

Gaming. 
Selling Liquor to Drunken 

Man. 

Selling Liquor to Habitual 
Drunkard, 

Selling Liquor to Minor. 

Misrepresenting Age to Ob- 
tain Liquor. 

Furnishing Liquor to Pris- 
oners. 



Parts of the Same Thing. 71 



Keeping Disorderly Liquor 
Shop. 

Selling Liquor on Sunday. 
Druggist Selling Liquor on 

Sunday. 
TradingNearCampMeeting. 
Cruelty to Animals. 
Suffering Glandered Horse 

at Large. 
Allowing Diseased Sheep at 

Large. 
Bringing in Texas Cattle. 
Killing Deer. 

Hunting Quails, Pheasants, 

or Wild Turkeys. 
Taking Prairie Chickens. 
Destroying Birds. 
Destroying Woodcock or 

Wild Duck. 
Hunting on Lands without 

Consent of Owner. 
Injuring Property while 

Hunting. 
KeepingQuail,etc.,forSaleat 

Certain TimesoftheYear. 
Carrying Game Killed in 

Violation of Law. 
Selling Game not Shot. 
CarryingGamebeyondState. 
Killing Wild Pigeons. 
Spearing or Trapping Fish. 
Stretching Net near Ohio 

River. 
Poisoning Fish. 
Using Seines, Dynamite,etc. 



SellingCanada Thistle Seed. 
Allowing Canada Thistle to 
Grow. 

Suffering Growth of Canada 
Thistle. 

Gathering Cranberries on 
Public Lands. 

Overworking Children at 
Factories. 

Preventing a Person from 
Working. 

Impeding Railroad Travel. 

Disclosing Contents of Tele- 
gram. 

Disclosing Contents of 
Telephone Message. 

Promoting Divorces. 

False Labels of Weights. 

Altering Inspector's Marks. 

Bringing Pauper into State. 

Deserting Wife or Child. 

Vagrancy. 

Tramps. 

Amalgamation. 

Counseling Amalgamation. 

Swindling Underwriters. 

Conspiracy. 

Malicious Prosecution. 

Failing to Keep Light on 
Drawbridge. 

Obstructing Navigable 
Streams. 

Maintaining Bridge with- 
out Draw. 

Leaving Bridge Open. 



72 Moral Law and Civil Law 



Injuring Bridge. 

Driving on Towpath. 

Opening Canal Blocks. 

Performing Marriage Cere- 
mony without Authority. 

Failing to Return Marriage. 

Giving False List of Taxa- 
bles. 

Not Providing Fire Escape. 
Obstructing Road. 
Obstructing Drainage. 
Obstructing or Diverting 
Water. 

Not Providing Outswinging 

Doors. 
Defrauding Creditors. 
Appropriating Estrays. 
Entry on State Lands. 
Horse Racing on Highways. 
Running Horses in Towns. 
Charging Illegal Ferriage 

or Toll. 
Oppressive Garnishment. 
Transferring Claims for 

Garnishment. 
SelHng Notes of Insolvent 

Bank. 
Disturbing Grave. 
Taking Corpse. 
Aiding Concealment of 

Corpse. 
Buying Corpse. 
Chmbing on Cars in Motion. 
Obstructing Highways with 

Cars. I 



Running Passenger Cars 
without Tools. 

Engineer Faihng to Stop 
at Railroad Crossing. 

DeceivingRailroadEngineer. 

Untimely Crossing on Rail- 
road Track. 

StoppingTrain on Crossing. 

Obstructing Highway with 
Train. 

Locking Passenger Cars. 

Failing to Give Signals. 

Selling Dangerous Toys. 

Selling Examination Ques- 
tions. 

Pointing Firearms. 

Permitting Gambling on 
Grounds of Agricultural 
Society. 

Running Traction Engine 
on Highway without 
Sending Man Ahead. 

Giving or Selling Tobacco 
to Children. 

Heavy Hauling on Highway 
at Certain Times. 

Hunting Squirrels at Cer- 
tain Times. 

Voting Illegally. 

Voting in Wrong Precinct. 

Nonresident Voting. 

Importing Votes. 

Voting More than Once. 

Hiring Men to ^'ote or Re- 
frain. 



Parts of the 



Same Thing. 73 



Selling Votes, 

Fraud of Election Officer. 

Altering Returns. 

Refusing to Receive Vote. 

Officer Persuading Voter. 

Officer Opening or Marking 
Ticket. 

Deceiving Illiterate Voter. 

Defrauding Voter. 

Using Violence, Threats, or 
Restraints to Influence 
Voter. 

Seizing Ballot Box. 

Destroying Ballot Box or 
Ballots. 

Inducing Voter to Resign 
Petition. 

Selling Signature to Peti- 
tion. 

Fraud at Special Election. 
Buying Vote. 

Bribing to Secure Election. 
Bribery for Nomination. 
Short Weights. 
Selling Coal by False 

Weights. 
False Gas Meter. 
False Pretense. 
Presenting False Claim. 
Forgery. 

Signing Blank Certificate. 
Counterfeiting Coin. 
Uttering Counterfeit Coin. 
Uttering Counterfeit Coin 
to Circulate. 



Having Counterfeit Coin. 
Having Counterfeit Appa- 
ratus. 

Counterfeiting Labels. 

Having Dies to Counterfeit 
Labels. 

Selling Goods w^ith Counter- 
feit Labels. 

Wearing Badge of Military 
Order to Obtain Assist- 
ance. 

Burning Natural Gas in 
Flambeaux. 

Failure of RailroadCompany 
toProvideWaitingRooms. 

SeUing Merchandise to Em- 
ployees at Higher Prices 
than to Others. 

Wearing Badge of Secret 
Society when not Entitled 
to do so. 

Failure to Provide Screens 
for Employees of Street 
Railways. 

Marrying to Avoid Prose- 
cution for Bastardy or 
Seduction. 

Horse Racing at Certain 
Times. 

Permitting Minor to Loiter 
about Saloon. 

Running Saloon in Connec- 
tion with other Business. 

Having Devices for Amuse- 
ment or Games in Saloon. 



74 Moral Law and Civil Law 

In all three hundred and twenty. 

The foregoing statutes, it can be seen, 
are, in most cases, against classes of of- 
fenses in which many acts in each class are 
included, so that the number of acts forbid- 
den is at least one hundred greater than 
the number I have given in the subjects 
named. Also add to the foregoing enu- 
meration offenses defined by acts of Con- 
gress against revenue, postal la-ws, etc., 
which apply in every State. The Legisla- 
ture might have passed a sweeping statute 
forbidding everything that in its purpose or 
effect is against sound morality. It will be 
seen that the Legislature has gone so far in 
its special definition of forbidden offenses 
as to legislate even in restraint of the tem- 
per and the tongue. The list of forbidden 
acts is growing, not only in the States of 
this Union, but with the advancing civili- 
zation of every government of the world. 
Profanity is immoral, and has been forbid- 
den by statute wherever civilization has 
reached respectable growth. Profanity was 
unlawful at common law, and the only pur- 
pose accomplished by a statute upon this 
subject is to fix a penalty. It is often urged 
that statutes should not be enacted that 



Parts of the Same Thing. 75 

are in advance of public sentiment, and 
that if the law cannot be enforced so as to 
repress what it forbids it should be re- 
pealed, so as not to cause contempt for all 
law. Statutes against profanity are so fre- 
quently and so boldly disregarded that they 
stand almost as dead letters. No wise man, 
however, would favor the abrogation of 
these statutes and thereby remove the re- 
straint from the brutal tongue. Profanity 
was condemned by the Ten Command- 
ments more than three thousand years ago, 
and has been unlawful ever since by exist- 
ing law under civilized conditions. It must 
not be overlooked that the commandments 
were only civil laws, intended solely -for 
civil government. They were each in ad- 
vance of public sentiment several thousand 
years at least, but are each yet maintained 
with no prospect of abrogation, as standards 
of human conduct required by civil law. 
Nations, governments, and innumerable 
people have been destroyed because of diso- 
bedience to the principles announced, but 
the commandments stand unchanged as the 
law. No man has a legal right to be im- 
moral, or to do any immoral thing where 
any person can hear or see his act. He has 



76 Moral Law and Civil Law 

no legal right to associate with immoral 
persons or characters. The civil law can 
break open the door to the hiding place of 
immorality, disregard all rights of liberty 
and property, and drag the offender to the 
judgment seat. The recent notorious case 
of Oscar Wilde is a good illustration of the 
relentless pursuit of civil law after private 
sin and immorality and the crushing judg- 
ment against it. 

The government demands in imperious 
terms private and public morality of its 
citizens, and undertakes to enforce its de- 
mands. It expends fabulous sums of money 
to educate and encourage the youth in the 
qualities of good citizenship. No stronger 
evidence could be adduced of the fixed and 
dominating influence of morality in govern- 
ment than the constitutional provisions, 
legislative acts, judicial decisions, and set- 
tled rules of law upon the subject. 



Parts of the Same Thing. 77 



CHAPTER V. 

LEGISLATION AND MORALITY. 

THE purpose of legislation is to provide 
for the emergencies of civil govern- 
ment. The limits to the power of legis- 
lation can be stated in a few words, without 
entering into refinements of constitutional 
provisions or legal learning. The Legisla- 
ture can enact whatever the public necessity 
requires to be enacted in order to carry out 
the purpose of the government, which is 
the promotion of the public welfare, and it 
can do no more. As was clearly established 
in the second chapter of this work, morality 
is the fundamental principle in civil govern- 
ment. Therefore the Legislature can, by its 
action, do whatever tends to promote mo- 
rality ; but any act in antagonism to morality 
is void. Every act of the Legislature must 
be in harmony with morality. 

Certain purposes must be in the mind of 
the Legislature in every act — either the en- 
couragement and promotion of morality, 
intelligence, or business in the dealing, 
6 



78 IMoRAL Law and Civil Law 

associations, and deportment of men, or the 
suppression of immorality. It will be found, 
upon careful examination of tlie civil and 
penal statutes, that they seek to accomplish, 
the same ends. They seek to regulate and 
provide for the business transactions among 
men, so as to avoid conflict, injustice, or 
oppression. It will also be found upon care- 
ful examination that many of the criminal 
statutes are intended to enforce and protect 
the provisions of legislation upon business 
affairs. It is a great question whether 
criminal statutes are not increasing more 
rapidly than civil statutes. In fact, if it 
were not for the criminal disposition in 
business transactions, there would be little 
necessity for business regulations by law. 
In every government in Europe, as well as 
in the L^nited States, the necessity is recog- 
nized for greater restraint by law in the 
interests of society and business upon im- 
morality. A concise expression upon this 
subject, which might be multiplied with 
many other extracts of similar import, I 
quote from the EncyclopcEdia Britannica, 
\o\. XI, page 1 8, what is said as to this 
line of legislation in England : ' ' Coercion 
for moral purposes. The measures hereto- 



Parts of the Same Thing. 79 

fore noticed may in general be justified 
either on the ground of inability of the per- 
sons protected to help themselves, or on the 
ground that some good to society as a whole, 
or to a large portion of it, is secured 
thereby. 

' ' Another class of measures openly aims 
at the moral importance of the individuals 
affected by them, and in this class there is an 
amazing and alarming increase. The laws 
against gaming are one of the best examples. 
At common law a wager was a contract en- 
f orcable by law. Not content with declining 
to enforce wagers, the State went further and 
tried to put them down altogether. It made 
lotteries illegal. It visited with heavy 
penalties the keeping of betting houses in 
public places, the publication of betting 
lists, etc. Games which lead to betting 
are put under the restraint of a license sys- 
tem, and in some parts of the provinces the 
State orders its citizens not to play billiards 
after eleven o'clock at night. . . . The State 
first of all limits the number of public houses ; 
then it dictates directly the hours during 
which liquor may be bought and sold ; and 
in vScotland and Ireland it goes further, and 
prohibits altogether the sale of liquor on 



8o Moral Law and Civil Law 

Sunday. A committee of the House of 
Lords has touched the highest point of 
government control in proposing to em- 
power local authorities to shut up all the 
public houses in their districts and carry on 
the business for themselves. There is a 
simultaneous increasing tendency to inter- 
fere with people's amusements; fairs are 
being put down as immoral, music and 
dancing require license charily granted, the 
grip of the chamberlain over the London 
theaters is tightening, and so on. 

The course of moral legislation, in fact, 
threatens to sweep away every barrier to 
the encroachment of the State. 

The extended range of government 
interference in other things has been accom- 
panied, as we have seen, with a very dis- 
tinct recommendation of limits, either in the 
rights of the individual conscience or in the 
capacity of adult manhood to manage its 
own affairs. But acts of Parliament for 
improving the moral characteristics of men 
seem to recognize no limit at all. And it is 
a singular fact that while this kind of legis- 
lation under existing social arrangements 
fails to affect the well-to-do classes, and op- 
presses chiefly the comparatively poor, it is 



Parts of the Same Thing. 8i 

becoming more and more identical with 
the popular party in politics, and gathers 
strength with every addition to the popular 
element in government." 

The foregoing statement is a carefully 
prepared and unbiased article written and 
published more than fifteen years ago. 
Anyone who has observed the tendency 
in Germany, France, and Russia, or 
smaller governments in Europe, will 
find that what is said of this line of legisla- 
tion in England is true of these govern- 
ments, though not to the same extent, and 
the same is true in the United States and 
in various States in this Union. It will 
also be found upon careful examination 
that the purpose of this line of legislation is 
to promote morality and suppress immoral- 
ity. We hear the statement made by small 
politicians and men who only seek the at- 
tainment of personal ends, that men cannot 
be made moral by legislation, that morality 
should be left to the Church and to religious 
teachers or to home training. It is amaz- 
ing the extent to which this idea obtains, 
not only in politics and partisan expression, 
but among all classes of people. It is not 
only erroneous, betraying dense ignorance, 



82 Moral Law and Civil Law 



but is very dangerous. It is to this heresy 
we must attribute the treachery, scheming, 
and trickery of legislators, and sometimes 
of courts and executive offices. The facts 
are, morality has everything to do with 
legislation, everything to do with the execu- 
tive and judicial departments, and every- 
thing to do with everything when civil 
government is in safe hands. 

The great misfortune in legislation is that 
each legislative body feels that it is not 
governed by ancient, long-settled, and well- 
determined rules, that it is largely inde- 
pendent and unrestricted by precedents. 
Considering the ignorance so often found in 
legislative bodies, the utter lack of experi- 
ence and the weakness of so many of the 
members, the skillful manipulators and 
light regard for consequences, it is not 
surprising that wise men have dreaded and 
feared the work of legislative bodies. Had 
it not been for the restraints against the 
wrong and the encouragement for the 
right that sound morality has thrown over 
these bodies, only disaster could have fol- 
lowed. There is no branch of the govern- 
ment, however, that offers greater encour- 
agement to the student than the legislative, 



Parts of the Same Thing. 83 

notwithstanding the weakness, inexperi- 
ence, ig-norance, and corrupting influences 
and temptation. The history of this branch 
of government shows a constant rise in 
the scale of morality, whatever may some- 
times appear to the contrary. It is con- 
stantly illustrated that one man of moral 
integrity and average intelligence in a 
legislative body is more than the equal of 
a score of immoral and depraved members. 

Let it not be forgotten, let it be empha- 
sized, repeated, emblazoned in the halls of 
every legislative body, that morality is a 
fundamental principle in legislation, and 
but for this principle, this law of nature, 
this law of God, this law of man, this good 
angel, popular government would fail. Mo- 
rality cannot be disregarded by the Legisla- 
ture ; it must be regarded, or the action of 
the body is void. Moral law was not created 
by a legislative body. It was never enacted. 
It was not created by the Constitution of the 
State or of the nation. Neither the Consti- 
tution itself nor the Legislature can disre- 
gard it and the action be valid. 

The Legislature may not bargain away 
the public morals permanently. It may 
not do so temporarily. It cannot bargain 



84 Moral Law and Civil Law 

away the public morals for one year, for 
one day, nor for one hour. Neither the 
Constitution nor the people themselves can 
do this. There is absolutely no power any- 
where to bargain away or compromise pub- 
lic morality. No man can defeat and 
destroy it; it stands as a fundamental 
principle. What is meant by the police 
power of the State is the unlimited law of 
necessity, the authority in the Legislature 
and the judiciary and the executive to pro- 
tect public morals, public health, public 
peace, and public welfare in all regards. 



Parts of the Same Thing. 85 



CHAPTER VI. 

COMMON LAW AND MORALITY. 

IN addition to statutory law we have in 
Indiana, for our government, the com- 
mon law. Sec. 236, Revised Statutes 
of 1 88 1, in Indiana, reads as follows: 

* * The law governing this State is declared 
to be . . Item 4. ''The common law, 
and statutes of the British Parliament in aid 
thereof, prior to the reign of James I (ex- 
cept the second section of the sixth chapter 
of the forty-third year of Elizabeth and the 
ninth chapter of the thirty-seventh, Henry 
VIII), and which are of a general nature not 
local to that kingdom and not inconsistent 
with the first, second, and third specifica- 
tions of this section." 

Common law is defined as follows : ' ' The 
common law is that which derives its force 
and authority from the universal consent 
and settled customs of the people. It has 
never received the sanction of the Legisla- 
ture by express act, which is the criterion 
by which it is distinguished from the statute 



86 Moral Law and Civil Law 

law. It has never been reduced to writ- 
ing. 

' ' By this expression, however, it is not 
meant that all of these laws are at present 
merely oral, or communicated from former 
ages to the present solely by word of mouth, 
but that the evidence of our common law is 
contained in our books and depends on gen- 
eral practice and the judicial adjudications 
of our courts. The common law is derived 
from two sources, the common law of Eng- 
land and the practice and decisions in our 
own courts. There is no general rule to as- 
certain what part of the English common 
law is binding. ... It may be observed 
generally that it is binding where it has not 
been superseded by the Constitution of the 
United States or of the several States, or by 
legislative enactments, or varied by cus- 
tom, and where it is founded in reason and 
consonant to the common genius and man- 
ners of the people." No man can make a 
mark at the place or time where the rules of 
common law, or any one of them, were 
found ; neither can he name the discoverer. 
However, as each of these rules has stood 
the test of ages and now prevails in Indiana 
and elsewhere, and is in perfect accord with 



Parts of the Same Thing. 87 

the Ten Commandments and the law of 
Moses in its general character, it is a blessed 
and easy thing for men who believe in the 
divine authorship of the Ten Command- 
ments to believe that these same rules of com- 
mon law were of divine origin. This theory 
takes these rules back to a source of super- 
human wisdom. The method of explaining 
rules and principles of law as now accepted 
by the most profound writers and authorities 
upon jurisprudence is the historic method ; 
and this method of explanation traces the 
rules of common law to the source I have 
indicated. Any other theory as to the ori- 
gin of these rules and principles of common 
law ends in mist and utter dissatisfaction. 
The Supreme Court of the United States, in 
the case of Baltimore and Potomac Railway 
Co.vs.$th. Baptist Church, etc., 108 U.S., 739, 
as a conclusion reached upon the somewhat 
lengthy consideration of the legal principles 
involved in the case, said, " The great prin- 
ciples of the Christian religion are like the 
principles of the common law;" and the 
court proceeded in that case to make an ap- 
plication of these principles. 

In this work I have not stated and shall 
not insist, because I deem it unnecessary to 



88 Moral Law and Civil Law 



the purpose in hand, that Christianity is 
part of the lawof the land, though that maybe 
claimed by a citation of the highest author- 
ity. I am presenting the subject of morality 
from a different standpoint — from a stand- 
point to be accepted by men of any or no 
religious belief. The decision of the United 
States Supreme Court just cited is important 
as declaring the law from the highest judi- 
cial tribunal in the land, giving the source 
of the moral standard. It is not an open 
question, subject to controversy or debate in 
either branch of the law, whether statutory 
or common law, that morality is the funda- 
mental rule and principle by which the law 
is regulated. 



Parts of the Same Thing. 89 



CHAPTER VII. 

MORALITY IN CIVIL COURT. 

THE moral law, with its rules and stand- 
ard established by the learning, ex- 
perience, religious teaching, divine 
revelation, and judicial decisions of the past, 
is as binding upon the citizens as the civil 
law, because it is a part of the civil law. 
Every legislator, every governor, every 
judge, every lawyer, in entering upon the 
duties of his office, holds up his hands to- 
ward heaven and takes an oath to obey the 
constitution and to perform the duties of his 
position, so help him God. This appeal for 
help to God means something. It is not an 
empty form. Either it is blasphemy, in 
taking the name of God in vain, or is mock- 
ery, or is anidle performance, or it is the most 
solemn ceremony that can be performed. 
Tlie person by whom this obligation is ad- 
ministered and the person to whom it is ad- 
ministered are dissembling and are playing 
the role of the arrant hypocrite, or else they 
are acting the part of the highest citizenship 



go Moral Law and Civil Law 

and highest patriotism. It is very clear that 
Almighty God will not help the legislator, 
nor the governor, nor the judge, nor the 
attorney in any way to establish, or protect, 
or excuse any business, or transaction, or 
thing that is against morality. Even if the 
Legislature does attempt to give sanction 
and confer its authority upon any enterprise 
which is immoral in its nature or which re- 
sults in immorality, then the governor and 
the judge have each an oath registered in 
heaven to declare such legislation void. 
The United States Supreme Court in the 
case of Mugler vs. Kansas, 123 U. S., 205, 
has defined the duty of the court in such a 
case as follows : 

' ' The courts are not bound by mere forms, 
nor are they to be misled by mere pretenses. 
They are at liberty, indeed, are under a 
solemn duty, to look at the substance of 
things whenever they enter upon an inquiry 
whether the Legislature has transcended the 
limits of its authority. If, therefore, a stat- 
ute purporting to have been enacted to 
protect the public health, the public peace, 
or the public safety, has no real or substan- 
tial relation to these subjects, or is a palpa- 
ble invasion of rights secured by the funda- 



Parts of the Same Thing. 91 

mental law, it is the duty of the court to so 
declare, and thereby give effect to the Con- 
stitution.'* 

Nothing has contributed to bring courts 
and the legal profession into disrepute, there- 
by encouraging mobs and white-cap pro- 
ceedings, so much as the general impression 
that morality has not a place in judicial pro- 
ceedings, either in fact or in theory. With- 
in the past two years the town of Roby, 
Indiana, has become distinguished as a loca- 
tion of enterprises of stupendous character 
for gambling and depravity of all kinds. 
I have been greatly interested in the discus- 
sion through the public press and in the 
expressions quoted from attorneys which as- 
sert that these things have been authorized 
by an act of the Legislature, and therefore 
could not be prevented. It would be very 
difficult to ascertain just how such conclusion 
was reached. As an illustration, one would 
infer that it had been reached by turning 
the pages of our statutes looking for an en- ' 
actment concerning Roby, Jackson, and Cor- 
bett. Finding no act upon either of these 
specifically, it was then declared that, as there 
was no act upon this subject, therefore James 
Corbett and Peter Jackson could proceed 



92 Moral Law and Civil Law 

with a prize fight at Roby without any re- 
straint from the law. While opinions upon 
this basis were being freely given a China- 
man was arrested in the city of Indianapolis 
for the establishment and maintenance of 
an opium-smoking joint. He was brought 
before the court upon a criminal charge for 
that offense. The same class of attorneys 
and self-styled profound investigators of le- 
gal principles, figuratively speaking, turned 
the pages of the statutes of the State of In- 
diana and the ordinances of the city of Indi- 
anapolis looking for enactments in regard to 
Chinamen and opium-smoking joints. They 
found no such laws. They found no allu- 
sions to Chinamen or to opium-smoking 
joints in the statutes of the State or in the 
ordinances of the city ; but the Chinaman 
was convicted, fined $500, and sent to the 
workhouse for six months. That case was 
clearly sustained by law, though not one 
word in regard to the offenses charged could 
be found in any law book, or statute, or city 
ordinance. The penalty, however, was too 
severe. The case was founded, and prop- 
erly so, upon the immorality of the China- 
man's business and its bad affect upon the 
public health and public morals. No legis- 



Parts of the Same Thing. 93 

lative act could be passed that could author- 
ize or protect such a business. Neither could 
any act be passed, however solemn its form, 
that would protect the exhibitions at Roby. 

As no act of immorality can be lawful or 
protected by legislation, so no decision of a 
court can long stand that in any way favors, 
protects, or excuses immorality. No act of 
the Legislature that contemplates or results 
in promoting immorality can be valid. 

The judicial is the most important branch 
of any government. I have called attention 
to the fact in a former chapter that legis- 
lative bodies v/ere liable not to feel them- 
selves bound by fixed and settled rules or 
precedents, and were liable to act upon the 
impression of their entire independence. 
This can never be the impression under 
which courts of justice act. Courts are 
bound by rules and principles that have been 
recognized and developed by the learning, 
experience, and integrity of thousands of 
years, and are stronger to-day in their bind- 
ing force than they were when Columbus 
discovered America. The most salutary 
rules of law, or, properly speaking, the most 
salutary laws, were never enacted by any 
Legislature, but have been developed by 
7 



94 Moral Law and Civil Law 

judicial decisions. These rules have been 
settled by the most profound learning and 
experience ; have been thoroughly consid- 
ered, tested, applied to emergencies, and 
are established. Courts, in the application 
of these rules, have differed sometimes, 
misapplied, overruled their own decisions, 
and readjusted their views to meet the re- 
quirements of these great principles. 

We have often had occasion in Indiana, 
as has been the case in other States, to ap- 
ply the rules of common law to questions 
where there has been no statutory provision, 
and these emergencies are likely to arise in 
all the future. There is one distinct, well- 
defined principle running through the civil 
law — the law of Rome — reaching be3^ond the 
Christian era, older than constitutions and 
republican forms of government, and main- 
tained continuously down through all exist- 
ing systems by judicial tribunals, that moral- 
ity is to be conserved in all judicial actions. 
It is true that the comprehension of morality 
was sometimes vague, yet, as comprehended, 
it was regarded as fundamental. The time 
and attention of courts, in the United States 
especially, are very largely required in an 
effort to construe and apply well-settled rules 



Parts of the Same Thing. 95 

of law to crude and badly-considered legis- 
lative acts, considered and passed by legis- 
lative bodies composed of men who know 
little or nothing of legal principles. How- 
ever ignorant or depraved the Legislature 
may be, courts are bound to accept its acts 
as the law, if they are harmonious with the 
Constitution, by using all presumptions in 
their favor that are consistent with funda- 
mental principles. 

The government expects and demands 
the exertion of each of its departments in 
one harmonious effort to promote the pur- 
poses for which it exists. The departments 
of government — executive, legislative, and 
judicial — can only act legally within the re- 
spective scope of each department. Each, 
however, has to do with the enactment of 
laws, so far as legislation is concerned. 
The judicial department, however, has not 
only the duty and responsibility of con- 
struing and declaring and settling the law 
as it is represented in legislative acts, but 
has also to apply these ancient principles of 
the common law in many cases, and, in ad- 
dition thereto, the rules of what is generally 
termed ''public policy;" in other words, 

The law of public necessity." The rules 



96 Moral Law and Civil Law 

of public policy, or, what is the same thing, 
the law of public necessity, are limited only 
by the extent of the necessity. There is 
set up before each department of the gov- 
ernment, however, a standard for its guid- 
ance. This standard is public morality. 
It must measure and weigh every act. It is 
the one standard, and the only one, that 
commands obedience in all respects. 

In 1840 the Supreme Court of Indiana 
was composed of three judges, each of re- 
markable ability and high moral and re- 
ligious character. Without disparagement 
to the reputation of any of the learned and 
good men who have occupied the Supreme 
Bench in our State, I can assert, without 
offense, that that high court has never been 
composed of men superior in all regards to 
Judges Isaac Blackford, Jeremiah Sullivan, 
and Charles Dewey. 

In the case of Watts, et al. vs. Pratt, 5th 
Blackford, 337, Judge Dewey delivered the 
unanimous opinion of the court in concise 
and clear language, defining the rule of law 
governing courts in such cases, in the fol- 
lowing language : ' * The subject of this 
law is to protect the public morals and pre- 
serve the peace and quiet of society ; being 



Parts of the Same Thing. 97 

designed for the public good, it should be 
so construed as to promote it." 

I quote again in this place what I have 
previously quoted from the Supreme Court 
of the United States, because, this being the 
highest tribunal in the nation, its decision 
must be taken as the settled law, and I need 
not support the proposition further by the 
citation of many cases, as I would otherwise 
feel compelled to do. The court defines the 
duties of courts as follows : 

' ' The courts are not bound by mere 
forms, nor are they to be misled by mere 
pretenses. They are at liberty, indeed, are 
under a solemn duty, to look at the substance 
of things whenever they enter upon an in- 
quiry whether the Legislature has tran- 
scended the limits of its authority. If, there- 
fore, a statute purporting to have been en- 
acted to protect the public health, the public 
peace, or the public safety, has no real or 
substantial relation to these subjects, or is a 
palpable invasion of rights secured by the 
fundamental law, it is the duty of the court 
to so declare, and thereby give effect to the 
Constitution." 

What is designated in law as public policy 
is a matter of such uncertainty, and about 



98 Moral Law and Civil Law 

which there is so little general information, 
that I feel called upon to offer some explana- 
tions of this term, because it is the duty of the 
courts to determine what is public policy, 
and where it applies. In America7i and 
English Encyclopedia of Law, Vol. IX, page 
880, under the heading Public Policy Ex- 
plained," the following explanation is given: 
' ' This term is equivalent to the policy of 
the law. It is applicable to the spirit as 
well as to the letter. Whatever tends to in- 
justice or oppression, restraint of liberty, 
commerce, and natural or legal rights, what- 
ever tends to the obstruction of justice or 
to the violation of the statute, and whatever 
is against good morals when made the ob- 
ject of a contract, is against public policy, 
and therefore void, and not capable of en- 
forcement. A form of contract may be legal 
on its face. There may be parties, compe- 
tent, willing, and agreed upon the subject- 
matter, who enter into an agreement to do 
or not to do, with an apparently fair con- 
sideration stipulated, but their agreement is 
null and futile if its object is judicially im- 
moral or against the policy of law. ... In 
construing contracts, courts hold entirely 
void those that are partly illegal in their 



Parts of the Same Thing. 99 

object. Legal stipulations are treated as 
unwritten when interwoven with others 
designed to controvene the law, or tending 
to that end. An illegal consideration will 
not be analyzed or dissected so as to sepa- 
rate good simples from bad, when the com- 
pound is noxious, rendering the object of 
the contract unlawful." 

Bishop, on Contracts, sec. 467, speaking 
of the rule of law as applied by courts, says : 
Contracts, illegal or of evil tendency, 
immoral or contrary to the policy of the law, 
or to public policy ; agreements between 
parties to do a thing prohibited by law, or 
subversive of public interest, which the law 
cherishes ; forbidden eitherby the common or 
the statutory law, whether it is malum in se, 
or merely malum prohibitum, indictable or 
only subject to the penalty of forfeiture ; or 
however otherwise prohibited by statute or 
the common law," are void. 

Courts look at the result from the execu- 
tion of contracts, and if they result in im- 
morality they are void, though they may 
seem to be harmless. In the case of Riley 
vs. Gordon, 122 Mass., 231, the court says: 

''A contract maybe illegal, though fair 
on its face." 



100 Moral Law and Civil Law 

No gambling contract or contract having 
an immoral consideration or contract to com- 
pel the performance of an immoral act, nor 
tlie payment of money for an immoral act 
performed, can be enforced in court. It is 
a maxim of the law, especially of equity, 
that the litigant who institutes an action 
in court must come with clean hands. 



Parts of the Same Thing. ioi 



CHAPTER VIII. 

THE LAW GROWS. 

S has been said before, legal principles 



are fixed. They are the same now 



as they were when Caesar crossed 
the Rubicon. But while this is true, it 
often happens that the scales of justice are 
not held sufficiently steady to exactly weigh 
civil conduct in accordance therewith. In 
other words, it often happens that courts 
of justice, like merchants, give short weight. 
There will never be any change in these 
principles. Courts make decisions, after- 
ward modify, criticise, and overrule the 
same, in their effort to properly apply legal 
principles to given questions. Legislative 
bodies are constantly acting, not upon new 
principles, but upon the necessity of apply- 
ing old principles by new methods to mat- 
ters of emergency, and thereby the law 
grows through legislation. It grows also in 
spite of legislation, even to the extent of 
annulling and setting aside legislative acts. 
The law grows with the growth of general 




102 Moral Law and Civil Law 



intelligence and public necessity. What 
was the law ten years ago, as interpreted by 
the courts at that time, may not be the law 
to-day, though no legislation has interposed, 
and no decision of a court has in fact been 
made. It often becomes apparent, upon 
some sudden light being thrown upon the 
matter of conduct or business or social en- 
terprise, that courts are constrained to 
render decisions which attract wide atten- 
tion because of public interest in the ques- 
tions involved, and the new application of 
old legal principles. This is the field where 
erudition and judicial minds exhibit distin- 
guished qualities, gain renown, and the 
work of courts is seen to the best advantage. 
I can present m)^ proposition best by way of 
illustration. 

A native was captured on the coast of 
Africa, and brought to Virginia and sold as 
a slave. His name was James Somerset. 
Charles Stewart became his owner. In 1 770 
Stewart took his slave with him to England 
as a body servant. While there, the slave 
became influenced by the teaching and ed- 
ucation of persons who declared that a slave 
could not be legally held in England. He 
refused to obey his master and denied the 



Parts of the Same Thing. 103 

relationship of master and slave. He was 
seized, put in chains, placed on board a 
ship to be sent to Jamaica. Before the ship 
had sailed Thomas Watkins, Elizabeth 
Cady, and John Marlow, three Quakers, 
made an affidavit in the court of the King's 
Bench, the highest court in England, that 
Somerset was unlawfully imprisoned. A 
writ of habeas corpus was issued against the 
ship's captain and the master, commanding 
them to produce the body of the slave in 
court. These persons, in answer to the 
writ, stated the facts, as they claimed them 
to be, of the relationship of master and 
slave and the insubordination. The legal 
questions involved were argued by very able 
counsel on each side before that high court, 
and the case was held under consideration 
for about a year and a half. The court 
went so far as to suggest to the master that 
it would be better that the case should be 
disposed of without pressing it to a decision, 
and even suggested that it would be better 
that this slave should be released than that 
the property in all the slaves in England 
should be jeopardized. However, the mas- 
ter could not be made to believe, even by 
the unusual and remarkably suggestive state- 



104 Moral Law and Civil La\v 

ment of the court, that it could be possible 
that the court could decide against him and 
his rights to property in and control of the 
slave. For more than fifty years slavery 
had been sanctioned in England by judicial 
decisions and public recognition. During 
that period Lords Hard wick, Talbott, and 
York, at different times, had decided that 
slavery was a legal institution. For about 
thirty years members of the Quaker society, 
and finally the body of that society, had de- 
clared against the institution of slavery as 
inhuman, immoral, ungodly, and unlawful. 
Other religious teachers and persons had 
been crying out against the institution. At 
the time when these legal proceedings were 
had, public sentiment against the institu- 
tion, because of its immorality, had become 
aroused. It was argued on behalf of the 
master that the law upon this question was 
settled by the judicial decisions made at 
different times and of long standing, and 
that public acquiescence, public necessit}^ 
and public policy demanded the mainte- 
nance of the institution. The consequences 
of a decision against the master were por- 
trayed in the most alarming expressions, 
and predictions were made of the most dire 



Parts of the Same Thing. 105 

consequences to commerce, business, social, 
and domestic relations, if this long-settled 
order of things and legal status should be 
disturbed. The influence of the wealthy, 
of royalty, great business enterprises, polit- 
ical and social interests, were arrayed with 
the master and against the slave. So strong 
was the showing made in these regards 
that the court seems to have been seriously 
affected thereby. Lord Mansfield, chief 
justice of that court, perhaps the most fear- 
less man who ever sat on the King's Bench 
in England, showed his apprehension when 
he contemplated the consequences of a de- 
cision and, I think the only time in all his 
history, sought to avoid rendering the judg- 
ment of the court. In the argument of the 
counsel on behalf of the slave, one of them, 
speaking of the growth of public sentiment 
upon this subject, said, " Upon this subject 
the air of England has been clearing since 
the reign of Elizabeth." 

Every precedent and decision that could 
be cited in the case was in favor of the 
master. It was a fact, entitled to very 
great influence in the case, that the public 
had sanctioned the institution of slavery 
and decisions in its favor by acquiescence 



io6 Moral Law and Civil Law 

for so long a period. In behalf of the slave 
there was not a precedent. In his interest 
it was asked that the settled order of things 
for this long period should be broken up, 
that more than fifteen thousand slaves in 
England, those in Ireland, more than one 
hundred and sixty-six thousand in Jamaica, 
should be liberated by a sudden decision of 
that high court upon a legal proposition, 
which had as its sole foundation the claim 
that the institution of slavery was illegal, 
because it was inhuman and immoral in its 
very nature and results and could not be 
made lawful by any decision of the courts 
or by any acquiescence and sanction of the 
public, however numerous these decisions 
and however long standing had been the 
public acquiescence. 

The attorneys for that black man appealed 
to the principles as presented in the Scrip- 
tures, the Christian religion, and by reli- 
gious teachers and common humanity. There 
is no other case like this, ancient or mod- 
ern, before a judicial tribunal in which what 
maybe termed the ''cold law" alone was 
clearly and fully presented on one side and 
only the hot blood of moral principles pre- 
sented on the other. On behalf of the mas- 



Parts of the Same Thing. 107 

ter counsel could read from law books, could 
appeal to the teaching of law schools, and 
could cite the precedent of history. 

On behalf of the slave there was no voice 
from the law; there were no law books. 
The court held the case under considera- 
tion until ample time was given to consider 
it from a legal standpoint and from a moral 
standpoint. The year and a half when the 
case was before the court was a period in 
which the great legal principles of morality 
were at work in the government. The 
business, social, and financial interests of 
the English government were excited on 
account of the question as to whether a case 
in court should be decided for the master or 
for the liberty of the black man. There, 
before that court, was the master, surrounded 
by such a powerful influence as perhaps no 
litigation in that highest court had ever 
presented. There was the black man with 
his claims, supported only by the disinter- 
ested and benevolent zeal of Christian sen- 
timent. The day came when the judges were 
on the judgment seat and the master and 
the slave were brought before them, and the 
judgment was pronounced. It looks now, 
as it looked then, a very unequal and unprom- 



io8 Moral Law and Civil Law 



ising struggle on behalf of the slave. It has 
been said of Lord Mansfield, who delivered 
the decision of the court in this case, that he 
decided all cases with a clear head but a cold 
heart. In this case, however, he seemed to 
have maintained his reputation for a clear 
head, but the evidence of a warm heart is 
also apparent. I quote this decision in part, 
sufficient to present in the most concise way 
its substance : ' ' The state of slavery is of 
such a nature that it is impossible of being 
introduced on any reason, moral or political. 
. . . The setting fourteen thousand or fifteen 
thousand men at once free, loose, by a sol- 
emn opinion is much disagreeable in the 
effects it threatens. ... If the parties will 
have judgment, Jia^ j'ustitm, mat ccelum 
(let justice be done, whatever be the conse- 
quence). Fifty pounds a head may not be a 
high price ; then a loss follows to the pro- 
prietors of above seven hundred thousand 
pounds, sterling. How would the law stand 
with respect to their settlement — wages? 
How many actions for any slight coercion 
by the masters ? We cannot in any of these 
points direct the law. The law must rule 
us. In these particulars it may be matter 
of mighty consideration what provisions 



Parts of the Same Thing. 109 

are made or set by law. Mr. Stuart may 
end the question by discharging or giving 
freedom to the Negro. I did think at first 
to put the matter to a more solemn way of 
argument. But if my brothers agree there 
seems no occasion. I do not imagine, after 
the point has been discussed on both sides 
so extremely well, any new light could be 
thrown on the subject. If the parties 
choose to refer it to the Common Pleas they 
can give them that satisfaction whenever 
they think of it. An application to Parlia- 
ment, if the merchants think the question 
of great commercial concern, is the best 
and perhaps the only method of settling the 
point for the future. . . . Whatever incon- 
veniences therefore may follow from a de- 
cision, I cannot say this case is allowed or 
approved by the law of England ; and there- 
fore the black man must be discharged" 
{Lofffs Report. Second Case). 

Believers in the Scriptures accept the ac- 
count of divine deliverance of Joseph from 
slavery and prison and promotion and ruler- 
ship in Egypt, and the deliverance of the 
three Hebrews from the burning fire, and 
Daniel from the lions' den. In each of these 

cases special divine interposition is reported. 
8 



no Moral Law and Civil Law 

In the case of Charles Somerset, the slave, 
the decision was not in accordance with the 
letter or spirit of the schools of law, law 
books, decided cases, or intellectual process 
of that day. A remarkable overpowering 
influence from some source came upon the 
mind of the court — a court never surpassed 
in the world's history for intelligence. Ad- 
vancing civilization threw a greater light 
upon that question, and thereby revealed 
what courts had never been able to see 
before. 

We are not driven to the necessity of 
claiming special divine interposition in be- 
half of the slave in this case. The great 
principle of public morality is strong enough, 
has in it such overpowering influence as that 
it is sufficient for any great emergency like 
this, when it has had due course. Doc- 
trines recognized and declared to be the 
law in that case are identical with the doc- 
trine taught by Christian teachers, by the 
Quaker Church, William Wilberforce, John 
Wesley, and many other great leaders, and 
were in accordance with the prayers and 
urgency of devout people, though they 
stood in conflict with what were recognized 
as legal precedents. Where did these peo- 



Parts of the Same Thing. hi 



pie get these doctrines which they had suc- 
ceeded in enforcing in such a wonderful 
degree and with such amazing success? I 
need go no further in my claim in this case 
than that the secret of this most renowned 
decision, the consequence of which will 
never end, was simply the application of 
the principles of sound morality to a ques- 
tion in civil courts. The court, in this de- 
cision, made the doctrines as taught by 
these religious teachers the law of the land, 
as against the doctrines as taught by the 
schools of law, the law books, precedents, 
and decisions. That decision set free all 
the slaves within the jurisdiction of that 
court, and a Christian civilization so ad- 
justed all the affairs, public and private, 
that the consequences never made a jar. 
One hundred and twenty-five years have 
gone by since that decision was rendered. 
The consequences have flown like a bene- 
diction in the pathway of mankind during 
all this period. That decision, as a prec- 
edent, has gone like a divine influence into 
the affairs of men. The judges who ren- 
dered it have gone to their reward, and in 
the great day of final judgment need not 
fear condemnation for that act. 



* 



112 Moral Law and Civil Law 



In 1807 the Indiana Territorial Legisla- 
ture chartered the Vincennes University, at 
Vincennes, Indiana. In that charter there 
was a section as follows : ' ' And be it further 
enacted, That for the support of the aforesaid 
institution, and for the purpose of procuring 
a library and the necessary philosophical 
and experimental apparatus, agreeably to 
the eighth section of this law, there shall be 
raised a sum not exceeding twenty thou- 
sand dollars, by a lottery, to be carried into 
operation as speedily as may be after the 
passage of this act, and that the trustees 
of the said university shall appoint five dis- 
creet persons, either of their body or other 
persons, to be managers of the said lottery, 
each of whom shall give security, to be ap- 
proved of by said trustees, in such sum as 
they shall direct, conditioned for the faith- 
ful discharge of the duty required of said 
managers, and the said managers shall have 
power to adopt such schemes as they may 
deem proper to sell the said tickets and to 
superintend the drawing of the same and 
the payment of the prizes," etc. The pres- 
ent Constitution of Indiana, adopted in 
1 85 1, prohibits lotteries. The Supreme 
Court of Indiana, in 1879, the case of 



Parts of the Same Thing. 113 

Kellum vs. The State, 66 Indiana, 588, held 
that under the charter to the Vincennes 
University the lottery provision had be- 
come a vested right and could not be dis- 
turbed even by a constitutional provision. 
This decision attracted wide attention in 
Indiana, and was the cause of much public 
discussion. The people of Indiana had be- 
come m^uch aroused upon the question of 
the morality of the lottery business. 
Churches were declaring in the form of 
resolutions and other action against the 
business. The better class of people were 
antagonizing it. There was a great and 
rapid growth of public sentiment upon this 
question. In 1883, in the case of the State 
vs. Woodard, 89 Indiana Reports, no, the 
question of the legality of the lottery pro- 
visions in the Vincennes charter, the iden- 
tical question that had been before the 
court in 1879 was again presented, and the 
court was again called upon to consider the 
question. No act of the Legislature had 
intervened since the former decision. In 
the interval between the former decision and 
the presentation of the question again the 
decision of the Supreme Court of the United 
States, in the case of Stone vs. Mississippi, 



114 Moral Law and Civil Law 

loi U. S. Reports, 814, had been ren- 
dered, in which that court held that the lot- 
tery business was an immoral business and 
could have no vested rights. When the Su- 
preme Court of Indiana looked a second time 
at the question they saw in it the principle 
involved, what the court did not see in the 
former decision, not because there was any 
new principle involved, but because by the 
reason of the growth of public sentiment 
and legal knowledge the court was enabled 
to see what it was unable to see before in 
the same question. In the latter decision 
the court disregarded all the precedents 
which it had cited, all the argument which 
it had made, all its own reasoning in the 
former case, overruled its former decision, 
and decided that the lottery provision in the 
Vincennes University was void, and that the 
lottery business could not be conducted by 
the trustees or anyone else for that institu- 
tion, because of the immorality of the busi- 
ness itself. 

At the close of the opinion of the court in 
this last case in Indiana, which was written 
by Judge Wordon, the reporter adds the 
following note : ' * This was the last opinion 
written by Hon. James B. Wordon." Judge 



Parts of the Same Thing. 115 

Wordon was one of the judges who had 
concurred in the opinion of that court four 
years before expressing exactly the con- 
trary opinion. 

Slavery had existed in the United States, 
had been recognized by the courts, includ- 
ing the Supreme Court of the United States, 
and by the people of the United States, as 
a lawful institution for more than two hun- 
dred and fifty years. It was so firmly es- 
tablished and so influential that men in 
public positions hazarded their personal 
safety by even suggesting that it ought to be 
legally interfered with. There was no pros- 
pect in the least of taking any step whatever 
to disturb it as an institution. The Supreme 
Court of the United States even had be- 
come so dominated and subjugated by the 
influences of that institution that for some 
time it disregarded every settled and fixed 
fundamental principle of law and morality, 
and in the face of the great precedent in 
the case of Somerset vs. Stewart, to which 
I have referred, decided by the King's 
Bench in England, by which slavery had 
been abolished, and decided that the black 
man had no rights that the white man 
was bound to respect. The decision in the 



ii6 Moral Law and Civil Law 

English case fell like a benediction, and has 
gone into every civilized government with 
its great influence, and shall shine brighter 
and brighter forever. 

The case of Dred Scott vs. John F. A. 
Stanford, decided in 1857, more than eighty 
years after the English case, by the Su- 
preme Court of the United States, going to 
the extreme against the rights of the colored 
man and in favor of the inhuman and im- 
moral institution of slavery, aroused the 
antagonism and warlike spirit of a large 
class of people, and was one of the greatest 
factors in producing civil war in the United 
States. 

Notwithstanding this decision of our own 
highest court, notwithstanding the fact that 
no legislation interfering with the existence 
of slavery was possible in the United States, 
notwithstanding the claim, and general ac- 
quiescence therein, that the government of 
the United States could not interfere with 
the institution of slavery in the States where 
it existed by legislation or otherwise, yet 
there came a day when the education of the 
people of the nation, under the excitement 
of those stirring days, had so rapidly ad- 
vanced that under the law of public neces- 



Parts of the Same Thing. 117 

sity Abraham Lincoln, by one stroke, as 
chief executive of the nation, could and did 
destroy that institution, as a war necessity, 
for the preservation of the government. 
The growth in the comprehension of the 
law concerning that institution from 1861 
to 1863 was greater than the growth of edu- 
cation upon that subject for the two hun- 
dred and fifty years previous. 

Ten years after the close of the civil war 
one of the most distinguished writers and 
statesmen in the nation prepared and caused 
to be published an article, in which he as- 
serted that slavery, in fact, had never been 
abolished in the United States, because 
Abraham Lincoln, as president, had no 
authority for issuing the Emancipation 
Proclamation, and that the proclamation 
was void. The article, however, only served 
to remind the people of what had once been 
the public impression, and how great had 
been the growth of education upon that 
subject, and caused a smile at the temerity 
of the writer. 

A case was recently presented to the Su- 
preme Court of Indiana in which a widow 
had brought suit against a saloon keeper 
and his landlord for damages done to the 



ii8 Moral Law and Civil Law 

widow's property, and the enjoyment of her 
home, by the establishment and maintenance 
of a saloon adjoining her residence. The 
defendants pleaded a license under the law 
of the State authorizing the saloon business. 
The license law of the State of Indiana made 
no exception as to locality, and the saloon 
keeper flaunted his license in the face of the 
widow with the utmost confidence that she 
was powerless and without relief under the 
law. This particular question had never 
before been presented to any court. Our 
Supreme Court, in its first decision upon that 
question, held that the widow was not enti- 
tled to any relief. A petition for rehearing 
was presented, considered, and sustained. 
The court having thus opened the case for re- 
consideration gave to the question presented 
remarkable and very unusual attention, and 
finally decided ; first, that the widow had a 
right of action; second, that the saloon 
keeper and also his landlord, who had leased 
the property for saloon purposes, were each 
liable for damages; third, that the license 
was no protection to the business in that lo- 
cality ; fourth, that an orderly saloon in an 
orderly residence neighborhood is, per sc, a 
nuisance. In reaching these conclusions the 



Parts of the Same Thing. 119 

court was compelled to disregard and annul 
largely the letter of the license law ; to de- 
clare that no statute could authorize by its 
provisions or give its protection to any act 
or business such as the business in the case 
presented ; that the saloon business is offen- 
sive to good morals and sound sentiment. 
This decision is without precedent upon the 
issue presented. The decision is a depar- 
ture from the view of the law and of the 
business as heretofore taken. This decision 
most forcibly illustrates the growth in the 
view of the law upon this subject. The 
Legislature of Indiana can grant no relief 
from the effect and consequences of this de- 
cision, for the reason that rights of property 
and enjoyment of the same as recognized in 
the decision cannot be interfered with with- 
out compensation. See Haggart et al vs, 
Stehlin et al, 137 Ind., 43. 

We have just recently had fine exhibitions 
of the growth of the law exhibited in regard 
to prize fighting. 

In January, 1894, a prize fight between 
James J. Corbett and Charles Mitchell was 
duly advertised to be given in the State 
of Florida. The governor called out the 
militia to prevent the immoral and demoral- 



120 Moral Law and Civil Law 

izing exhibition. A court of justice, upon 
application, issued an injunction against 
the use of the militia for the purpose for 
which it had been called, declaring that 
there was no law in Florida against prize 
fighting, and thereby prevented all inter- 
ference on the part of the State troops and 
the police authorities. The Governor of 
Texas, on being informed by his attorney 
general in the month of October, 1895, that 
there was no law in Texas to prevent prize 
fighting, assembled the Legislature of the 
State to meet the emergency, and within 
three hours after that body was organized 
a law had been passed and signed by the 
governor forbidding such brutal exhibi- 
tions. Within less than one month after 
this enactment in Texas, in response to the 
public demand of advanced civilization, 
when the same exhibition was undertaken 
to be given in the State of Arkansas, the 
chief executive, his attorney general, and 
the court decided upon, and put in execu- 
tion, judicial process, and prevented the 
same, not upon an act of the Legislature, 
but upon a construction of the law as it had 
existed ever since the organization of the 
State, and provisions almost identical with 



Parts of the Same Thing. 121 

those that had had long existence in the 
States of Florida and Texas, the provisions 
of which were ample to have met the emer- 
gency in either of these States, if properly 
construed, to prevent a prize fight. 

The force of public opposition has thrown 
such a light upon the real character 
and demoralizing influences of prize fight- 
ing that the law, as it is, has grown to meet 
the emergency, until prize fighting is clearly 
unlawful in every State in the Union. Na- 
tional and State Constitutions grow with the 
experience and enlightenment of men. The 
word ''morality" itself is a thing of growth. 
This word means much more than it once 
did, and some day will mean a vast deal 
more to us than it does now. Growth in the 
comprehension of no word, perhaps, has 
broadened more in recent years than the 
word ''cruelty." Its scope now covers 
many subjects and a wide field. There was 
a time when a man could lawfully whip his 
wife in moderation, beat his children to the 
limits of brutality, and kill his slave or 
his animals with impunity, without being 
charged with cruelty. We have now reached 
the point in our comprehension of this word 
where it is dangerous for a man to kick his 



122 Moral Law and Civil Law 

own dog, fail to feed his own horse, or even 
threaten to strike his own wife. There was 
a time when the word ''cruelty" had its own 
particular and narrow meaning. Now it is 
merely one of the branches of immorality. 
A cruel man is a bad man, and a bad man 
cannot be a moral man. 

I have said that the law grows. I have 
made this declaration in this form for con- 
venience and for the purpose of making 
myself more easily understood. Strictly 
speaking, the law does not grow, but the 
comprehension of legal principles does 
grow. Principles as set forth in the Ten 
Commandments will be no greater in the 
day of final judgment than when they were 
written down in the presence of Moses on 
tables of stone, but every generation will 
learn something new concerning these prin- 
ciples and will see in them what has not 
been seen before. The history and growth 
in the comprehension and meaning of the 
word ''morality" is a most fascinating study. 
Nothing short of the historic evolution of 
morality for two thousand years can furnish 
full comprehension of its meaning. The 
volumes that have been written upon this 
subject would make such a weight as few 



Parts of the Same Thing. 123 

men could carry at one time. The word 
"morality," as used in the Constitution of 
Indiana and the Constitutions of other States 
and in the judicial decisions of other States, 
must be held by faithful judges to contem- 
plate all that ever can be found at any time by 
the most profound research under the most 
brilliant light within its boundaries. Civil 
law is not founded upon any military, mar- 
tial, business, or social ideas. The abiding- 
and fundamental principle in civil law is 
morality, with its honesty, fair dealing, and 
justice to all men. The historic method of 
explanation of legal principles which is the 
method accepted by courts that are well in- 
formed on legal principles has narrowed 
and changed the meaning of many words, 
and even dropped some words and whole 
expressions out of definitions, but this 
method has, for three thousand years, 
steadily, but never as rapidly as within 
recent years, developed, enlarged, and 
strengthened the word ''morality." I ven- 
ture to prophesy for the future that the 
word ''morality" will respond to the in- 
quiries of faithful courts by the revelation 
of many beautiful and most important ideas 
heretofore and now unseen. Writers on all 



124 Moral Law and Civil Law 



branches of the law well know that the indi- 
vidual statements of legal propositions have 
little weight. Therefore it is not only the 
most common custom, but an absolute neces- 
sity, that any writer should fortify his state- 
ments by quotations from good authority. I 
have heretofore quoted from Austin's works 
on jurisprudence, because he is perhaps the 
bestauthorityonhistoric development of legal 
principles, and his high authority is univer- 
sally recognized by the legal profession. 

I feel that I can do no better in closing 
this chapter than to quote at some length 
from this high authority. In doing so let 
me call special attention to the fact that the 
author, in what I shall quote, is not merely 
lecturing upon the subject, but is consider- 
ing, from a legal standpoint, the subject of 
''morality." He uses the words '' ethics " 
and ^' ethical," meaning by these words ex- 
actly what was then and is now meant by 
the word " morality." This is shown in his 
work, and also in quotations made from him 
in another chapter of this work. 

In Vol. I, pp. 137-138, this author says: 
" If the elements of ethical science were 
widely diffused, the science would advance 
with proportionate rapidity. 



Parts of the Same Thing. 125 

" If tlie minds of the many were informed 
and invigorated, their coarse and sordid 
pleasures and their stupid indifference 
about knowledge would be supplanted by 
refined amusements and by liberal curiosity ; 
a numerous body of recruits from the lower 
of the middle classes, and even from the 
higher classes of the working people, would 
thicken the slender ranks of the reading and 
reflecting public, the public which occupies 
its leisure with letters, science, and philoso- 
phy ; whose opinion determines the success 
or failure of books, and whose notice and 
favor are naturally courted by the writers. 

' ' And until that public shall be much ex- 
tended, shall embrace a considerable portion 
of the middle and working people, the sci- 
ence of ethics, with all the various sciences 
which are nearly related to ethics, will ad- 
vance slowly. 

" It was the opinion of Mr. Locke, and I 
fully concur in the opinion, that there is no 
peculiar uncertainty in the subject or matter 
of these sciences ; that the great and extraor- 
dinary difficulties by which their advance- 
ment is impeded are intrmsic, are opposed by 
sinister interests or by prejudices which are 

the offspring of such interests ; that if they 
9 



126 Moral Law and Civil Law 

who seek or affect to seek the truth would 
pursue it with obstinate application and with 
due ' indifferency ' they might frequently hit 
upon the object which they profess to look 
for. Now, few of them will pursue it with 
this requisite ' indifferency ' or impartiality 
so long as the bulk of the public which de- 
termines the fate of their labors shall con- 
tinue to be formed from the classes which 
are elevated by rank or opulence, and from 
the peculiar professions or callings which 
are distinguished by the name of ' liberal.' 
In the science of ethics, and in all the various 
sciences which are nearly related to ethics, 
your only sure guide is general utility. If 
thinkers and writers would stick to it 
honestly and closely they would frequently 
enrich these sciences with additional truths 
or would do them good service by weeding 
them of nonsense and error. But since the 
peculiar interests of particular and narrow 
classes are always somewhat adverse to the 
interests of the great majority, it is hardly 
expected of writers whose reputation de- 
pends upon such classes that they should 
fearlessly tread the path which is indicated 
by the general well-being. 

' ' The indifferency in the pursuit of truth 



Parts of the Same Thing. 127 

which is so earnestl)^ inculcated by Mr. 
Locke is hardly to be expected of writers 
who occupy so base a position ; knowing 
that a fraction of the community can make 
or mar their reputation, they unconsciously 
or purposely accommodate their conclusions 
to the prejudices of that narrower public, 
or, to borrow the expressive language of the 
greatest and best of philosophers, they be- 
gin with espousing the we II- endowed opinions 
in fashion, and then seek arguments to 
show their beauty or to varnish or disguise 
their deformity." 

Also in same volume, at pages 141 to 143 : 
"This patience in investigation, this dis- 
tinctness and accuracy of method, this free- 
dom and ' i7idifferency ' in the pursuit of the 
useful and the true, would thoroughly dis- 
pel the obscurity by which the science is 
clouded, and would clear it of most of its 
uncertainties. The wish, the hope, the pre- 
diction of Mr. Locke would in time be ac- 
complished, and ' ethics ' would rank with 
the sciences which are capable of demonstra- 
tion. The adepts in ethical as well as in 
mathematical science would certainly agree 
in their results, and as the jar of their con- 
clusions gradually subsided a body of doc- 



128 Moral Law and Civil Law 

trine and authority to which the multitude 
might trust would emerge from the exist- 
ing chaos. The direct examination of the 
multitude would only extend to the ele- 
ments and to the easier though more mo- 
mentous of the derivative practical truths. 
But none of their opinions would be adopted 
blindly, nor would any of their opinions be 
obnoxious to groundless and capricious 
change. Though most or many of their 
opinions would still be taken from authority, 
the authority to which they would trust 
might satisfy the most scrupulous reason. 
In the unanimous or general consent of numerous 
and impartial inquirers they would find that 
mark of trustworthiness which justifies re- 
liance on authority wherever we are de- 
barred from the opportunity of examining 
the evidence for ourselves. 

With regard, then, to the perplexing 
difficulty which I am trying to solve or ex- 
tenuate the case stands thus : 

' ' If utility be the proximate test of posi- 
tive law and morality, it is simply im- 
possible that positive law and morality 
should be free from defects and errors. 
Or (adopting a different though exactly 
equivalent expression), if the principle of 



Parts of the Same Thing. 129 

general utility be our guide to the divine 
commands, it is impossible that the rules of 
conduct actually obtaining among mankind 
should accord completely and correctly with 
the laws established by the Deity. The in- 
dex to his will is imperfect and uncertain. 
His laws are signified obscurely to those 
upon whom they are binding, and are sub- 
ject to inevitable and involuntary miscon- 
struction. 

' ' For, Jirs^, positive law and morality, 
fashioned on the principle of utility, are 
gotten by observation and induction from 
the tendencies of human actions ; from what 
can be known or conjectured, by means of 
observation and induction, of their uniform 
or customary effects on the general hap- 
piness or good. Consequently till these 
actions shall be marked and classed with 
perfect completeness, and their effects ob- 
served and ascertained with similar com- 
pleteness, positive law and morality, fash- 
ioned on the principle of utility, must be 
more or less defective and more or less 
erroneous. And these actions being in- 
finitely various and their effect being in- 
finitely diversified, the work of classing 
them completely and of collecting their 



130 Moral Law and Civil Law 

effects completely transcends the limited 
faculties of created and finite beings. As 
the experience of mankind enlarges, as 
they observe more extensively and accu- 
rately and reason more clearly and pre- 
cisely, they may gradually mend the defects 
of their legal and moral rules, and may 
gradually clear their rules from the errors 
and nonsense of their predecessors. But 
though they may constantly approach, they 
certainly will never attain to a faultless 
system of ethics, to a system perfectly in 
unison with the dictates of general utility, 
and therefore perfectly in unison with the 
benevolent wishes of the Deity. 

' ' And, secondly, if utility be the proxi- 
mate test of positive law and morality, the 
defects and errors of popular or vulgar 
ethics will scarcely admit of a remedy. For 
if ethical truth be a matter of science, and 
not of immediate consciousness, most of the 
ethical maxims which govern the sentiments 
of the multitude must be taken without 
examination from human authority. And 
where is the human authority upon which 
they can safely rely ? Where is the human 
authority bearing such marks of trust- 
worthiness that the ignorant may hang 



Parts of the Same Thing. 131 

their faith upon it with reasonable assur- 
ance ? Reviewing the various ages and the 
various nations of the world, reviewing the 
various sects which have divided the opin- 
ions of mankind, we find conflicting maxims 
taught with equal confidence and received 
with equal docility. We find the guides of 
the multitude moved by sinister interests 
or by prejudices which are the offsprings of 
such interests. We find them stifling in- 
quiry, according to the measure of their 
means ; upholding with fire and sword or 
with sophistry, declamation, and calumny 
the theological and ethical dogmas which 
they impose upon their prostrate disciples. 
Such is the difficulty. The only solution 
of which this difficulty seems to admit is 
suggested by the remarks which I have 
already submitted to your attention, and 
which I will now repeat in an inverted and 
compendious form. 

" In the first place, the diffusion of ethical 
science among the great bulk of mankind 
will gradually remove the obstacles which 
prevent or retard its advancement. The 
field of human conduct being infinite or 
immense, it is impossible that human under- 
standing should embrace and explore it com- 



132 Moral Law and Civil Law 

pletely . But by the general diffusion of knowl- 
edge among the great bulk of mankind, by 
the impulse and the direction which the dif- 
fusion will give to inquiry, many of the de- 
fects and errors in existing law and immo- 
rality will in time be supplied and corrected. 

* ' Secondly, though the many must trust to 
authority for a number of subordinate truths, 
they are, competent to examine the elements 
which are the groundwork of the science of 
ethics, and to infer the more momentous of 
the derivative practical consequences. 

" And, thirdly, as the science of ethics ad- 
vances and is cleared of obscurity and uncer- 
tainties, they who are debarred of opportuni- 
ties of examining the science extensively will 
find an authority whereon they may ration- 
ally rely in the unanimous or general agree- 
ment of searching and impartial inquiries." 

Again, on pages 177 to 180: 

''The science of ethics (or, in the lan- 
guage of Mr. Bentham, the science of deon- 
tology) may be defined in the following 
manner: It affects to determine the test 
of positive law and morality, or it affects to 
determine the principles whereon they must 
be fashioned in order that they may merit 
approbation. In other words, it affects to 



Parts of the Same Thing. 133 

expound them as they should be; or it 
affects to expound them as they ought to 
be; or it affects to expound them as they 
would be if they were good or worthy of 
praise ; or it affects to expound them as they 
would be if they conformed to an assumed 
measure. The science of ethics (or simply 
and briefly ethics) consists of two depart- 
ments, one relating especially to positive 
law, the other relating to positive morality. 
The department which relates specially to 
positive law is commonly styled the science of 
legislation, or, simply and briefly, legislation. 
The department which relates specially to 
positive morality is commonly styled the sci- 
ence of morals, or, simply and briefly, morals. 

' ' The foregoing attempt to define the 
science of ethics naturally leads me to offer 
the following explanatory remark. When 
we say that a human law is good or bad, or 
is worthy of praise or blame, or is what it 
should be, or is what it ought to be, or what 
it ought not to be, we mean (unless we 
intimate our mere liking or aversion) this : 
That the law agrees with or differs from a 
something to which we tacitly refer it as a 
measure or test. For example, according 
to either of the hypotheses which I stated 



134 Moral Law and Civil Law 

in preceding lectures, a human law is good 
or bad as it agrees or does not agree with 
the law of God ; that is to say, with the law 
of God as indicated by the principle of utility 
or with the law of God as indicated by the 
moral sense. To the adherent of the theory 
of utility a human law is good if it be 
generally useful, and a human law is bad if 
it be generally pernicious. For, in his 
opinion, it is consonant or not with the law 
of God inasmuch as it is consonant or not 
with the principles of general utility. To 
the adherent of the hypothesis of a moral 
sense a human law is good if he likes it, he 
knows not why ; and a human law is bad if 
he hates it, he knows not wherefore. For 
in his opinion his inexplicable feeling of 
liking or aversion shows that the human law 
pleases or offends the Deity. 

' ' To the atheist a human law is good if 
it be generally useful, and a human law is 
bad if it be generally pernicious. For the 
principle of general utility would serve as a 
measure or test, although it were not an in- 
dex to an ulterior measure or test. But if 
he call the law a good one without believing 
it useful, or if he call the law a bad one 
without believing it pernicious, the atheist 



Parts of the Same Thing. 135 

merely intimates his mere liking or aversion. 
For unless it be thought an index to the law 
set by the Deity an inexplicable feeling of 
approbation or disapprobation can hardly 
be considered a measure or test. And in the 
opinion of the atheist there is no law of God 
which his inexplicable feeling can point at. 
To the believer in supposed revelation a 
human law is good or bad as it agrees with 
or differs from the terms wherein the rela- 
tion is expressed. 

In short, the goodness or badness of a 
human law is a phrase of relative or vary- 
ing import. A law which is good to one 
man is bad to another in case they tacitly 
refer it to different or adverse tests. The 
divine laws may be styled good in the sense 
with which the atheist may apply the epithet 
to human. We may style them good or 
worthy of praise, inasmuch as they agree 
with utility considered as an ultimate test. 
And this is the only meaning with which we 
can apply the epithet to the laws of God. 
Unless we refer them to utility, considered 
as an ultimate test, we have no test by which 
we can try them. To say that they are 
good because they are set by the Deity is to 
say that they are good as measured or tried 



136 Moral Law and Civil Law 

by themselves. But to say this is to talk 
absurdly ; for every object which is meas- 
ured or every object which is brought to a 
test is compared with a given object other 
than itself. If the laws set by the Deity 
were not generally useful, or if they did 
not promote the general happiness of his 
creatures, or if their great Author were not 
wise and benevolent, they would not be 
good or worthy of praise, but were devilish 
and worthy of execration. 

" Before I conclude the present digres- 
sion I must submit this further remark to the 
attention of the reader. 

' ' I have intimated in the course of this 
digression that the phrase law of nature and 
the phrase natural law often signifies the law 
of God. 

' ' Natural law as thus understood and the 
natural law which I mentioned in my fourth 
lecture are disparate expressions. The nat- 
ural law which I there mentioned is a por- 
tion of positive law and positive morality. 
It consists of the human rules, legal and 
moral, which have obtained at all times and 
obtained at all places. 

* * According to the compound hypothesis 
which I mentioned in my fourth lecture, 



Parts of the Same Thing. 137 



these human rules, legal and moral, have 
been fashioned on the law of God as indi- 
cated by the moral sense. Or, adopting the 
language of the classical Roman jurists, 
these human laws, legal and moral, have 
been fashioned on the divine law as known 
by natural reason. 

' ' But besides the human rules which have 
obtained with all mankind there are human 
rules, legal and moral, which have been 
limited to peculiar times or limited to pe- 
culiar places. 

' * Now, according to the compound hypoth- 
esis v/hich I mentioned in my fourth lec- 
ture, these last have not been fashioned on 
the law of God, or have been fashioned on 
the law of God as conjectured by the light 
of utility. 

''Being fashioned on the law of God as 
shown by an infallible guide, human rules 
of the first class are styled the law of nature; 
for they are not of human position purely or 
simply, but are laws of God or nature clothed 
with human sanctions. As obtaining at all 
times and obtaining at all places, they are 
styled by the classical jurists jus gentium or 
jus ornnuim gentium (the law of nations or 
the law of all nations)." 



138 Moral Law and Civil Law 



CHAPTER IX. 

EVIL MUST BE SUPPRESSED AND GOOD PRO- 
MOTED. 

The growth of public morality in civil 
government has been like the advance of 
an irresistible army. It has been checked 
and compelled to halt and fight long, des- 
perate battles, but has never retreated. It 
has utterly overthrown, crushed, and de- 
stroyed governments, kings, rulers, and peo- 
ple who have opposed its advance. It is per- 
suasive, patient, and kind to such as heed 
warnings, but merciless and relentless to 
those who will not yield. It will not con- 
sent that immorality, or any system or enter- 
prise or business that is immoral, or tends 
to immorality, or has an immoral influence, 
shall in any way be sanctioned or excused. 
The institution of slavery, which claimed 
divine sanction and the authority of divine 
revelation, which was once accepted by all 
men, became an institution especially offen- 
sive to the advance of morality, and was 
ultimately destroyed by the decision of the 
court upon moral principles in England, and 



Parts of the Same Thing. 139 

by the action of the chief executive in the 
United States upon the same ground, and 
other nations are obeying the same high 
command and abolishing the institution 
among their people, so that it is unknown 
to-day among all civilized people. Gam- 
bling, for amusement or business, was once 
thought to be a mere matter of individual 
taste and privilege, but when its immorality 
and bad influence were made to appear it was 
outlawed everywhere from nation to nation. 
Once the gladiators furnished entertainment 
for a multitude of men, women, and children 
by sanction of government and universal 
consent ; but that has gone with the fierce 
brutality of long ago, and we have so far 
progressed that prize fighting may now be 
understood as unlawful in every State in 
this Union, and is rapidly being driven from 
the soil of other nations. We have so far 
progressed in our application of the sensi- 
tive demands of morality in this direction 
that bear baiting, bull fighting, cock fight- 
ing, dog fighting, and even rat baiting are 
all made unlawful. 

Wager of battle between disputants over 
personal matters or property rights was once 
a legal method of settling questions, but we 



140 Moral Law and Civil Law 

have now reached the point where dueling, 
fighting, and even quarreling over matters 
of dispute are forbidden by law. The lot- 
tery business, once taken to be a legitimate 
business and matter of amusement, so highly 
regarded in the United States within the 
recollection of persons now living as that it 
was made the means of raising funds for 
erecting public buildings in the capital city 
of the nation ; was chartered by provision of 
the Indiana Territorial Legislature in 1807 
in the Vincennes University in Indiana, by 
which a library for that institution of learn- 
ing was to be secured ; was considered proper 
means for raising money with which to build 
churches, and furnished entertainments for 
church socials ; but the immoral character, 
influence, and results of the lottery business 
became so serious that it was declared by 
Lord Holt from the King's Bench in Eng- 
land long ago, without any act of Parliament 
upon the subject, to be unlawful because of 
its immorality. For the same reason it was 
always unlawful if the principles of law had 
been properly applied in the United States. 
Every State in this nation has finally de- 
clared the lottery business to be unlawful, 
as has the Supreme Court of the United 



Parts of the Same Thing. 141 



States. It has been hunted down and been 
driven from our shores, and even from its 
temporary resting place in the government 
of Mexico, because of the immorality and 
bad influence that necessarily followed in its 
wake. There is one universal, thoroughly 
settled rule of law in this nation, not founded 
upon legislation, but older than legislation, 
often, however, recognized and supported 
by legislation, that any business that is im- 
moral, tends to immorality, or results in 
promoting immorality, is unlawful. It is 
not only unlawful, but cannot be made law- 
ful by any act of the Legislature, nor long 
maintained as lawful even by decisions of any 
court of last resort. There are two chief con- 
cerns in civil government which have been 
established by the States in the Union : 

First, to promote morality, and, second, 
to suppress immorality. 

I quote again upon this proposition, Art. 
8, Sec. I, of the present Constitution of In- 
diana : ' ' Knowledge and learning gener- 
ally diffused throughout a community being 
essential to the preservation of free govern- 
ment, it shall be the duty of the General As- 
sembly to encourage, by all suitable means, 
moral, intellectual, scientific, and agricul- 
10 



142 Moral Law and Civil Law 

tural improvements, and to provide by law 
for a general and uniform system of common 
schools, where tuition shall be without charge 
and equally open to all." 

It must be kept in mind that morality is a 
science ; as much so as mathematics, the 
oldest science known among men. In pursu- 
ance of the constitutional provision I have 
just quoted, the Legislature of Indiana long 
ago chartered the State Board of Agricul- 
ture to encourage the culture of whatever 
the soil can produce. The Legislature has 
also established at great expense, in obedi- 
ence to this section of the Constitution, a 
State University for general literary culture, 
Purdue University for special instruction, 
State Normal School for preparing teachers, 
schools for the instruction of the deaf and 
dumb and blind and the feeble-minded, 
and a general system of common schools 
providing for the regulation and licensing 
of school-teachers. This section is by far 
the most important section in our Constitu- 
tion, and the first subject in the section, the 
chief and greatest subject which the Legis- 
lature is commanded to ' ' encourage by all 
suitable means," is morality. Morality is a 
►specific and independent subject in the Con- 



Parts of the Same Thing. 143 



stitution, as much as science, agriculture, or 
education. 

This section was taken as a section from 
our former Constitution, with only two 
changes of any importance. One of these 
is that morality is taken from a subordinate 
position in the former Constitution and 
given a chief place in the section in our 
present Constitution, and the subject of 
education is added. 

The Legislature is given the power, and 
is commanded by this constitutional provi- 
sion to do anything and everything that may 
be necessary or required to promote educa- 
tion, and to suppress everything that retards 
or has a tendency to retard, interfere with, 
or prevent education. It has the same au- 
thority and has the same command as to 
the subject of agriculture and scientific in- 
formation, and has the same authority and 
has the same command as to the subject of 
morality. The Legislature in the discharge 
of its duty has carefully provided a public 
school system with strict requirements as 
to the qualifications of teachers. If the 
Legislature were to provide that the schools 
should teach that the earth is flat, and that 
the sun literally rises and sets, it will be 



144 Moral Law and Civil Law 

conceded that such a law would be absolute- 
ly void. 

The story is told that in an early day in 
Indiana, long before this constitutional pro- 
vision and the coming of our common school 
system, a school-teacher went into one of 
our country neighborhoods to secure the 
signatures of parents to an article employing 
him as a teacher and agreeing to send their 
children to his school. He was so fortunate 
as to be admitted to one of those quasi social 
gatherings so common in an early day in this 
State, known as wool pickings, where the 
women of the neighborhood met together 
to enjoy themselves socially, picking the 
burs and Spanish needles out of the wool, 
so that it could be used. He made his busi- 
ness known to the women, and asked those 
who were heads of families to sign it, and 
the others to speak to their husbands or 
fathers about it so that they would be ready 
when he went around to see them. He was 
a fluent talker, and had had much experience 
in his work, and had made a very favorable 
impression upon his auditors. He was on 
the point of taking his departure when one 
of the women informed him that there had 
been trouble in that neighborhood with 



Parts of the Same Thing. 145 



a former teacher on the question whether 
the earth was round or fiat, and that she 
and her husband would want to know his 
views on that subject before they signed 
that article. Another woman showed very 
clearly that the subject was a very familiar 
one to her, and that she differed from the 
first speaker, and demanded that he should 
announce his views. He saw at once that 
he had a difficult case on his hands, but his 
skill was equal to the occasion. Every eye 
was on him, and they awaited his answer. 
He answered that he had been educated in 
both schools and would teach that the earth 
was round or flat, just as they preferred. 
After the adoption of this constitutional 
provision and the legislation in pursuance 
thereof, that teacher with all the quacks 
like him took their departure from Indiana. 
It would not be a pleasant subject for me, a 
native Hoosier, to dwell upon or consider at 
great length the condition of Indiana as to 
illiteracy when our present Constitution was 
adopted. But I take great pleasure in call- 
ing attention to the fact that Indiana has 
made such progress under this constitutional 
provision and her favorable legislation, with 
her licensed and qualified school-teachers 



146 Moral Law and Civil Law 

and universities and schools, that no Hoosier 
need be ashamed of the showing we are now 
able to make. We have also made commend- 
able progress in agriculture and scientific 
departments. 

I make the statement that we have made 
less progress in moral science and morality 
than we have in any other science ; much 
less than in education or agriculture. It 
will be found, upon investigation, that old 
methods of teaching have been abandoned, 
and amazing improvements in methods and 
in good results have been accomplished with 
wonderfully important and rapidly grow- 
ing facilities, conveniences, and capacity for 
teaching and imparting and acquiring edu- 
cation ; old methods of agriculture have 
been abandoned, and the fields have been 
cleared of trees, stumps, and stones. Ma- 
chinery and mechanical improvements have 
been brought into use to such an extent 
that a person can hardly comprehend the 
bettered condition and wonderful advance 
that has been made upon this subject since 
the adoption of our present Constitution. 
The discoveries of our people, and the adop- 
tion of the discoveries made by others, with 
instructions given, have made the growth 



Parts of the Same Thing. 147 

of scientific information in the same period 
in our State a matter of constant amaze- 
ment. In education, agriculture, and sci- 
ence it is necessary only to call attention to 
the subjects to startle a person with his own 
observations and the evidences all about 
him of the amazing advance in these re- 
gards. Now, when I ask my fellow-citizens 
in this State whether we have progressed 
in sound morality since 185 i, they stare at 
me and either speak with great hesitation 
and uncertainty or ask time to consider be- 
fore they attempt to answer at all. 

We are proud of our advance in educa- 
tion, in agriculture, and scientific informa- 
tion in Indiana during the last twenty-five 
years ; but no man is at all proud or satisfied 
with our advance in morality. I do not 
want to speak disparagingly upon this 
subject further than I am compelled. We 
have advanced in moral culture, and have 
reason for encouragement, not so much at 
the extent of our advancement, but that we 
have advanced at all, and have not in fact 
retreated. I think no man who has made 
careful investigation will claim that moral 
improvement has been equal to our improve- 
ment in these other subjects. This same 



148 Moral Law and Civil Law 

state of facts in regard to Indiana is true 
generally in regard to every other State in 
the Union. There has either been less 
interest taken in the subject of morality 
than in education, or agriculture, or the 
sciences, or else there has been some 
greater obstruction in this line of culture. 
Let us look briefly at the methods of pro- 
motion in other subjects, and for the 
obstruction thereto, and for the promotion 
of morality and obstruction thereto, for 
the purpose of finding, if possible, the 
cause which has produced this disparage- 
ment. The State of Indiana, by her consti- 
tutional provision and legislation based 
upon it, took the subjects of morality, 
agriculture, scientific information, and edu- 
cation under its special patronage for the 
purpose of promoting these subjects. For 
the purpose of promoting agriculture the 
Legislature passed laws providing for a 
system of highways, drainage, and many 
other matters, and also, by penal acts, 
fines, and imprisonments, restraining stock 
from running at large to prey upon the 
crops, fencing of railroads, cutting of nox- 
ious weeds, and has encouraged by re- 
wards care in the productions of the soil, 



Parts of the Same Thing. 149 

and in every way preventing what would 
result in or tend to the general obstruction 
of agriculture. There is not one influence 
that is known to have an injurious effect 
upon general agriculture that is not for- 
bidden by the law of Indiana and sought to 
be removed. 

Concerning the subjects of education, 
agriculture, or science, which are all the sub- 
jects except morality mentioned in the con- 
stitutional provision referred to, nothing is 
permitted by law, or in any way legalized or 
sanctioned, which is understood to have a ten- 
dency to interfere with or obstruct the work 
or development of either of these subjects. 

These subjects have a free course and a 
full chance to exert all their influence. 
Their pathway is cleared before them. 
Universities, colleges, schools, and about 
fourteen thousand teachers are maintained 
and enormous expense incurred by the State 
in specific instruction upon these subjects. 
For all of this, with the great prospects 
ahead of us in these regards, let us all 
rejoice. Our school law provides that 
teachers must pass an examination cover- 
ing certain branches of education, and such 
branches must be taught, but they are not 



150 Moral Law and Civil Law 

required to be examined upon moral science 
or to teach it. 

In many schools in Indiana, heretofore, 
teachers have been given to understand 
that they were not to teach the whole truth 
upon certain subjects which are not only 
matters of scientific truth, but also impor- 
tant to the interest of public morality. 

To the credit of our last Legislature it 
passed an act compelling school board 
trustees, superintendents, and teachers to 
teach the whole truth. It is humiliating to 
admit that evil influences have been so 
great in our State, as has been true of 
many other States, that even science was 
compelled to close its lips. 

It is another evidence of the irresistible 
power of moral force that it can gain such 
victories. 

Strange as it may seem science had sub- 
mitted and the public school system had 
been subjugated, and morality alone came 
to the rescue. 

Hereafter the injurious effects of alco- 
holic drinks and narcotics will be taught 
under compulsion in all our public schools. 
Morality is the protecting angel for all 
truth. 



Parts of the Same Thing. 151 

I have said that the Legislature of Indiana 
has taken care and provided at great ex- 
pense and by suitable means for general 
education and specific instruction in agri- 
culture and the sciences, but I inquire, What 
system and what means have been provided 
for specific instruction in moral science ? 

This science, though made the chief sub- 
ject and greatest concern in the Constitu- 
tion, has absolutely no legislative provision 
for its promotion. There must be legisla- 
tive provision made for instruction in the 
principles and rules and their application in 
moral science. Whatever instruction in 
the great department of morality there may 
have been in the public schools it has been 
incidental and as a side matter of minor 
importance to other branches of education 
of absolute importance. 

Heretofore the Legislature has contented 
itself in regard to this subject by a some- 
what vigorous effort to suppress acts of 
immorality. 

The theory is thoroughly settled that if 
an act, transaction, or business is immoral, 
or tends to immorality, it must be sup- 
pressed by law. 

The mere effort, however vigorous, on 



152 Moral Law and Civil Law 

the part of the State to suppress immorality 
is not sufficient to meet the demands upon 
this subject. 

But the effort to suppress immorality has 
not been and is not now consistent, and 
fails at most important points. To this I 
shall presently call attention and attempt 
to show what I believe to be a serious 
failure in this regard. 

I call attention to the suitable means and 
methods by which the State has sought to 
promote the interest of these other subjects. 

For education it has chartered and sup- 
ports great institutions and a general 
system. For agriculture it has done the 
same thing. Like provisions have been 
made for science. 

After the most careful thought and in- 
vestigation on the part of Robert Dale 
Owen, Governor Whitcomb, and the other 
distinguished men who devised our common 
school system, it was determined that the 
State should take this subject under its 
special care and, among other things, for 
the purpose of promoting the efficiency and 
protecting the business and profession of 
teaching, that a license system for teachers 
was the best plan. This plan has worked 



Parts of the Same Thing. 153 

so well that it stands to-day with universal 
approbation. 

By this plan we have developed a great 
army of very efficient and successful 
teachers whose attainments are in demand 
and whose employment is sure. 

The inefficient teachers who could often 
secure employment because willing to 
accept low wages have all departed or else 
qualified themselves for the work. Such 
persons were generally successful competi- 
tors against better qualified applicants, on 
the ground of economy. 

This plan of examining and licensing 
teachers has wonderfully promoted and 
protected the profession and business of 
school-teaching and the cause of education 
for which it was designed. 

For the purpose of promoting the science 
of medicine and surgery after a most 
thorough investigation by the most intelli- 
gent men in these professions, and others 
whose judgment was entitled to great 
weight, it was decided that the best method 
to accomplish this end was by a test of fit- 
ness and license for practitioners. Though 
this system has been in existence less than 
ten years in Indiana it has accomplished 



154 Moral Law and Civil Law 



more for this science in that short period 
than had been done in fifty years before, 
and is universally approved. 

This system has had like results in other 
States. A license system for ministers in 
some form is now adopted by nearly all re- 
ligious denominations as the best system 
for promoting the Gospel and protecting 
the business and vocation of preaching. 

Whenever the State desired specially to 
promote a business or enterprise by control- 
ling it, it has been settled by the experience 
of all the past that the best method to 
accomplish the end designed is by a license 
system. 

This has been proven true in education, 
in agriculture through incorporated soci- 
eties, in the science of medicine and surgery, 
in marriage, and, in fact, in all corporated 
or private enterprises. 

Incorporation is a license. The business 
and individuals licensed or incorporated to 
conduct any enterprise are thereby favored 
and protected for thebenefit of the enterprise. 

Farmers, merchants, manufacturers do 
not need license, because they can take care 
of themselves. 

No profession, business, or enterprise is 



Parts of the Same Thing. 155 

licensed or incorporated upon a theory or 
purpose of lessening or restraining the 
magnitude of the profession, business, or 
enterprise. Because of the good results 
license systems are increasing for laudable 
enterprises, as penal enactments are in- 
creasing against immoral enterprises. 

Tlie only purpose of a penal act is to 
suppress ; so the only purpose a license act 
can have is to promote. 

As a good illustration of the purpose and 
results of a license theory I use the 
Methodist Episcopal Church. 

It was organized a little more than a 
hundred years ago with six members, and 
began work with a license system for its 
ministry, and undertook thereby the evan- 
gelization of the world. So successful has 
it been by virtue of that system that its 
growth has been fabulous beyond the re- 
sult in any other denomination, until now 
it numbers its communicants and ministers 
in every clime on the globe, and its millions 
of money follow their footsteps. 

This is the working of a license system 
by an ecclesiastical government, but it is 
the same system in principle when worked 
by a civil government for any enterprise. 



156 Moral Law and Civil Law 

Such a system has never failed to produce 
like results when applied to any enterprise 
unless possibly in the case of some business 
too insignificant to be promoted by any aid. 

The inevitable conclusion is that a license 
system is a wise and necessary provision for 
the promotion and protection of any laud- 
able enterprise that needs the special super- 
vision of the State for the good it may be 
able to do the public. 

License systems have been tested and 
tried often and by many governments, for 
the purpose of preventing the evil effects of 
immoral enterprises. These experiments 
have been thoroughly made and this system 
thoroughly tested for this purpose and found 
in every instance to produce results exactly 
the reverse of what was desired. 

This theory of legislation has been ap- 
plied to gambling, lotteries, prostitution, 
and the exhibitions and enterprises which 
were recognized as dangerous to public 
morals and public peace and under con- 
ditions more or less severe, with a revenue 
provision. 

These license systems for each of these 
immoral enterprises have proven failures so 
serious as to be alarming, and have been 



Parts of the Same Thing. 157 

abandoned almost universally where civil- 
ized nations exist and are remembered with, 
disgust and loathing by decent people. 

Only a few years ago the Louisville Lot- 
tery opened its offices and advertised its 
business in the cities and towns all over the 
United States with impunity, and many 
people who stood high in business and so- 
ciety invested largely and regularly in the 
enterprise. 

That organization was licensed by a spe- 
cial act of the Kentucky Legislature, and 
presided over and officered by distinguished 
men who were proud of, and ready to die for, 
their reputation. 

The act of the Legislature had provided 
that this licensed and chartered lottery 
should pay annually to the State treasury a 
sum of money. 

The Court of Appeals, in deciding upon 
this feature of the legislative act in the case 
of Commonwealth vs. Douglass, before re- 
ferred to in this work, said : ''When we con- 
sider that honesty, morality, religion, and 
education are the main pillars of the State, 
and for the protection and promotion of 
which government was instituted among 
men, it at once .strikes the mind that govern- 
11 



158 Moral Law and Civil Law 

ment through its agents cannot throw off 
these trust duties by selling, bartering, or 
giving them away." 

In 1867 the Legislature of Mississippi 
granted a charter (license) to the Mississippi 
Agricultural, Educational, and Manufactur- 
ing Aid Society, with the right to issue and 
sell lottery tickets and to conduct the lottery 
business in consideration of the annual sum 
of $5,000, and $1,000 in tax and one half of 
one per cent of the amount received from 
the sale of the tickets to be paid into the 
State treasury for the privilege granted. 

A question arose as to the validity of that 
act of legislation. The society claimed that 
it had secured vested right by virtue of that 
legislation, public acquiescence, and large 
investment of money in the business. That 
question passed through the regular course 
to the Supreme Court of the United States, 
in the case of Stone et al vs. Mississippi, 10 1 
U. S., 814. That court considered the act 
of the Legislature with all that it contem- 
plated, and also the lottery business with all 
that it contemplated, and the real character 
of the business, and decided that the lottery 
business was inherently immoral, and the 
legislative act chartering the business was 



Parts of the Same Thing. 159 

void. Concerning lotteries the court said : 
* ' We are aware that formerly, when the 
sources of public revenue were fewer than 
now, they were used in all or some of the 
States, and even in the District of Columbia, 
to raise money for the erection of public 
buildings, making public improvements, 
and not infrequently for educational and 
religious purposes ; but this court said, more 
than thirty years ago, speaking through Mr. 
Justice Grier, in Phalen 2^^. Virginia, 8 How., 
163, 168, that 'experience has shown that 
the common forms of gambling are com- 
paratively innocuous when placed in con- 
trast with the widespread pestilence of lot- 
teries. The former are confined to a few 
persons and places, but the latter infests the 
whole community ; it enters every dwelling ; 
it reaches every class ; it preys upon the hard 
earnings of the poor; and it plunders the 
ignorant and the simple. . . . That they are 
demoralizing in their effects, no matter how 
carefully regulated, cannot admit of a doubt. 
When the government is untrammeled by 
any claim of vested rights or chartered 
privileges no one has ever supposed that 
lotteries could not be lawfully suppressed, 
and those who manage them punished se- 



i6o Moral Law and Civil Law 

verely as violators of the rule of social mo- 
rality.' " 

Of the legislative act the court said, ' ' No 
Legislature can bargain away the public 
morals or the public health or the public 
peace." The court held that the act of the 
Legislature of Mississippi licensing the lot- 
tery was void. 

Finally the public came to see by the 
light thrown upon the business that it was 
immoral and dishonorable. The decision 
of the Court of Appeals in Kentucky to 
which I have referred followed, and declared 
that the legislative act licensing the Louis- 
ville Lottery was void, and that no act could 
be passed that would be valid for such busi- 
ness because of its immorality, and the 
Louisville Lottery fled from the State of 
Kentucky never to return. 

A like history has been recorded of the 
Louisiana Lottery since the Louisville Lot- 
tery was driven out of existence by the 
courts. 

The law is now settled in this nation that 
no Legislature can license the lottery busi- 
ness, because of its bad effect upon public 
morals. 

The United States government has arrayed 



Parts of the Same Thing. i6i 

all its power and closed its mails against this 
business, and woe be to the transgressors. 

President Harrison made it the subject of 
a special message to Congress, urging imme- 
diate action for the protection of an imper- 
iled nation. 

The Louisiana Lottery had secured such 
an influence in the State of Louisiana that 
it is evident it could not have been broken 
up by action of State authorities if the United 
States government had not closed its mails 
and declared hostility against it. 

The judicial action against the lottery 
business is perhaps the best illustration of 
the wonderful growth in public sentiment 
against immorality, and, also forcibly shows 
the growth of legal comprehension of moral 
principles and their application to civil af- 
fairs. 

Extensive and expensive provisions have 
been made for teaching and promoting all 
the other subjects mentioned in the consti- 
tutional provision in Indiana except mo- 
rality, and futile attempts have been made 
to authorize things against the interest of 
morality. 

It may be said that the State in the erec- 
tion of great buildings, and a school system 



1 62 Moral Law and Civil Law 

and costly provisions for education, and by 
her chartered institutions and aid to agricul- 
ture, and her encouragement and aid to scien- 
tific culture, has sought to aid and has pro- 
moted the subject of morality. 

But, I ask. Has not morality, unaided by 
the State, done more for each of these sub- 
jects named within the Constitution than 
they have done for morality with all their 
aid? 

I humbly claim for morality stately build- 
ings, chartered institutions, public funds, 
legislative provision commensurate with the 
importance of the subject — in the language 
of the Constitution, "suitable means" for 
its promotion. 

Jehoshaphat, in the third year of his 
reign, sent to his princes Ben-hail, Obadiah, 
Zechariah, and to Nethaneel and to Mich- 
aiah, to teach in the cities of Judah, and 
with them nine Levites and two priests. 

And they taught in Judah, and had the 
book of the law of the Lord with them, and 
went about throughout all the cities of Ju- 
dah, and taught the people." 

It is recorded that Jehoshaphat waxed 
great and had much business in the cities of 
Judah. There certainly ought to be some- 



Parts of the Same Thing. 163 

body, and by some means officially, teaching 
in the cities of this nation upon the subject 
of morality. 

Reading thanksgiving proclamations by 
our presidents and governors we are almost 
startled by the devout spirit manifested, and 
if it were not for our observations would ex- 
pect to see every place of divine worship 
filled by the people on the day set apart for 
that purpose. 

The rush of college students and public 
school boys, with an occasional college 
president and professors, with an army 
of young and middle-aged men on such 
occasions to witness football games and 
other sports, and the meager attendance on 
divine worship are enough to start the 
inquiry whether this custom has not be- 
come a mockery and would better be aban- 
doned. 

I venture to suggest that even the ser- 
mons on the occasions seem to be vieing 
with the proclamations in high-sounding, 
far-away piety and not quite enough of com- 
mon morality for strengthening the citizen 
in the duties of everyday life. 

We have up to this point been consider- 
ing the substance of things, what has been 



1 64 Moral Law and Civil Law 

accomplished, methods tested, and the prin- 
ciples at work. 

Mythology says that Hercules was des- 
tined by the gods to complete twelve great 
undertakings before his work was ended. 

Shall we stop here in the consideration of 
the work and destiny of the twin giants, 
moral law and civil law? 

To advance is not an easy undertaking. 

Morality fights no sham battles nor assails 
an unarmed foe. 

We must take our places in the ranks and 
perform our duty or stand aside while the 
column goes by. 

We can hear the marching columns sing : 

" We have battles to fight ; 

We have foes to subdue ; 
Time waits for no man, 

And we wait not for 5^ou. 

" The mower mows on, 

Though the adder may writhe, 

And the copperhead coil 
'Round the blade of the scythe." 

We have called attention specifically to 
some things that have been tolerated and 
some that have been approved and author- 
ized by law, but have at last been forbidden 
and suppressed because of their immorality. 



Parts of the Same Thing. 165 

As a matter of legal principle to which 
there is not an exception in its application, 
whatever is immoral or tends to immorality 
must be suppressed and cannot exist by per- 
mission. The great undertakings that civil 
government is destined yet to complete no 
man has presumed to number. That they 
are many no man will question. 

That these are to be worked out by citi- 
zens through the application of legal princi- 
ples and methods must be clear to us all. 

I shall content myself with the considera- 
tion of what I think will be the next hercu^ 
lean undertaking of civil government in 
the States and by our general government. 



1 66 Moral Law and Civil Law 



CHAPTER X. 

NO PRIVILEGES FOR EVIL. 

FROM considerations presented in 
former chapters in this work I feel 
safe in saying that whenever the 
question is settled that any business or 
any conduct is immoral, that settles another 
question that follows as an inevitable con- 
clusion, that business or conduct at once 
becomes an outlaw and cannot be given 
any legal status by any power known to 
civilized government. 

It has taken a long time in many cases 
to settle the question of immorality. 

As has been shown in many cases cited 
herein, enterprises, institutions, and conduct 
long accepted and looked upon as not mat- 
ters of public concern, are sometimes sud- 
denly seen to be improper and lawless and 
dangerous to the public welfare. In many 
cases long discussion, growth of intelligence, 
and sometimes bloody strife have been 
required to bring out full comprehension of 
the real character of great evils. Some of 



Parts of the Same Thing. 167 

the greatest evils have not always and under 
all conditions been evils or immoral. 

Human slavery had its favorable condi- 
tions. 

Daniel was a captive slave in Babylon, 
and Joseph was sold for twenty pieces of 
silver, but each reached a position that 
would gratify the most ambitious, and for 
which a man could afford to become a 
slave. Eleazer was Abraham's slave, but 
no greater advantage could have fallen to 
the lot of Eleazer, and was greatly to Abra- 
ham's advantage. 

In unnumbered cases men and women, 
brought by force from their savage and 
beastly condition in Africa to the United 
States, became the property and were 
brought under the influence of humane 
masters and religious teachings, which has 
been, and will be to them and to their 
children an untold blessing in all time to 
come. 

Many have been the cases where the 
slave in old age, disability, or sickness was 
free from care and his wants met by a 
kind-hearted master. 

Many things could be truthfully said in 
favor of African slavery. 



1 68 Moral Law and Civil Law 

We can easily call up the scene of 
life before the civil war in this nation, 
when, as they were called, the old colored 
aunties and uncles clung to their master 
and mistress and to their children with a 
childlike and simple affection that was most 
beautiful. 

I have in mind actual cases where these 
old uncles and aunties loved their master 
and mistress, and cared for and loved their 
little and grown masters and mistresses in 
the family, with that devotion we all long 
for, but seldom see, in the homes in these 
days between employer and employees. 
That tender relation between Uncle Tom 
and Little Eva, truthfully pictured by Mrs 
Stowe, has made many a little girl who has 
contemplated it wish she had such a faith- 
ful friend as Uncle Tom. 

I say that slavery had many things that 
could be said with great force in its favor. 
So strong were these favorable arguments 
for slavery that it took two hundred and 
fifty years and an awful experience to 
overcome them. That other side of slavery 
given in Uncle Tom s Cabin was always true 
in the L^nited States. 

Slavery was always wrong in principle, 



Parts of the Same Thing. 169 

and its general influence and results were 
always bad. 

Thomas Jefferson, when he contemplated 
the nature of the institution of slavery 
more than fifty years before the civil war, 
uttered the honest sentiment of his heart 
when speaking of slavery. He said, "I 
tremble for my country when I reflect that 
God is just and that his justice will not 
slumber forever." 

Well might Jefferson tremble under such 
contemplation when he saw that institution 
recognized and to be continued by public 
acquiescence. 

Jefferson's fears were well founded. A 
just God did amid the thunder and light- 
ning of war destroy the wicked institution. 

Slavery, from that fatal day in the year 
1620, was always legally wrong and im- 
moral as an institution, and by permitting 
it to exist anywhere in the United States 
the people invited the storm that swept it 
away at such awful cost. Every year that 
it continued made the cost of its removal 
the greater. 

There were many things that could be 
said for the lottery business. It was often 
used as a method for raising money for 



170 Moral Law and Civil Law 

good purposes — in erecting public buildings 
and educational enterprises, and for many 
other purposes that were laudable. In such 
cases some consideration was given for 
every investment and ticket sold. 

It took centuries to fully expose the 
wrong principle and immorality in this busi- 
ness. When that was accomplished the 
lottery business became per se unlawful, 
and cannot be authorized under any condi- 
tions. 

The United States government is founded 
upon the right to religious liberty. 

Men may teach, and organize to teach, if 
they desire, that there is no God, or they 
may adopt any form of worship and teach 
anything as to the character of the divine 
Being they like, or promulgate any reli- 
gious creed, so long as they keep within the 
bounds of public morality. But they can- 
not transcend that boundary. 

The Mormon Church taught and practiced 
plurality of wives. For that immorality in 
religious belief the government by force 
broke up their religion, made it unlawful, 
and confiscated the great estate of Brigham 
Young. Many good things could be said 
for the Mormon Church, but in so far as it 



Parts of the Same Thing. 171 



encouraged or promoted immorality it was 
an outlaw, as in any other case. 

It might be said that if two or more per- 
sons for mere pastime and amusement, 
who can afford to, without inconvenience, 
see fit to put up a small wager on a quiet 
game, it concerns no one but themselves. 

But gambling is on a wrong and danger- 
ous principle and is immoral, and for that 
reason all public and private ' gambling, 
even in the quietude of a private home, is 
rigidly forbidden. It has been fully shown 
that the experiment often tried of licens- 
ing and regulating lotteries, gambling, and 
other immoral lines of business was wrong 
in principle and resulted in enlarging the 
magnitude and evils of such business ; and 
for these reasons this theory of dealing with 
these evils has been abandoned and the 
settled and universal policy adopted of for- 
bidding the existence of these enterprises. 

I have called attention to the fact that 
the theory of chartering, incorporating, and 
licensing proper and useful enterprises has 
wonderfully developed and is growing in 
favor rapidly. 

The words chartered, incorporated, or li- 
censed mean substantially the same thing. 



172 Moral Law and Civil Law 

While this theory has worked satisfac- 
torily and grown in favor when applied to 
useful and moral enterprises, it has cor- 
respondingly worked unsatisfactorily and 
disastrously whenever applied to any im- 
moral enterprises. There is not an excep- 
tion to this rule to be found in history, 
covering three thousand years, in the 
practical working of every system which 
gave such theory recognition and consent, 
whatever might have been the regulations 
and restrictions to immorality. This theory 
has been long and thoroughly tested and 
abandoned. Let us not be extravagant 
or reckless in statements, but let us be just 
as careful not to be timid, for I am now 
dealing with an extremely important 
matter. 

I call attention to the many cases cited 
heretofore in this work, and especially to 
the cases wherein chartered rights without, 
and sometimes for large compensation to 
the States have been granted by legislative 
acts for lottery enterprises, and which acts 
have been held to be void. We boast, and 
well we may, of our rapid growth in intelli- 
ofence, moral sense, and comprehension of 
- legal principles. Every person who claims 



Parts of the Same Thing. 173 

to have been benefited by this advanced 
condition of affairs must be prepared to 
look at any matter of public concern calmly 
and thoroughly. 

I now call attention to the saloon busi- 
ness, the institution, the enterprise, the 
place of resort where persons are invited, 
induced, and enticed to assemble and buy 
and drink intoxicating liquors and partici- 
pate in the association of such a place. 

It is not my intention to enter into a 
temperance lecture, or to say anything on 
the vsubject of temperance, or to discuss the 
question of the manufacture and sale of 
intoxicating liquors, or whether everyone 
must totally abstain or may use intoxicating 
liquors. I shall confine myself to the con- 
sideration of the legal status of the saloon, 
this place of resort, this business. 

What kind of a business is this ? Is it a 
moral or immoral business per se ? Upon 
the settlement of these questions will de- 
pend the judicial action and the theory of 
legislation that shall be applied. Are the 
tendencies, effects, and results of this busi- 
ness like or substantially the same as in 
any other business which courts have rec- 
ognized as moral? 
12 



1/4 Moral Law and Civil Law 

I have heard it said that in Germany 
men go with their families and sit down 
at tables and drink beer for social en- 
joyment without bad moral results. 

If any person will stop and think about 
such a statement, of what the influence and 
tendency of such a place must be under 
this, the very best claim that can be made 
for it, he will turn from such a claim of 
innocence with disgust. At any rate that 
kind of family life in the United States 
will not produce good results. 

I need only call attention to the well- 
known fact that the German government is 
aroused to great activity upon this subject 
of the saloon influence, and in the last five 
years oflicial statements of most alarming 
character have been published by its au- 
thority. 

It is a hard thing to say of any commu- 
nity that the parents and children together 
resort to saloons and drink beer or any 
other intoxicating liquors. Such a state- 
ment carries an impression of the moral 
and intellectual condition of that commu- 
nity decidedly unfavorable to the mind of 
every citizen of average standing. Take a 
saloon under the most favorable conditions 



Parts of the Same Thing. 175 

claimed for it and think about it. The 
mind can reach but one conclusion as to its 
influence. 

I say its influence and effects are not like 
the influence and effects of any business 
that we know of that is a moral business. 
There is an influence and effect in the 
saloon business worse and more dangerous 
than any influence or effect in or about any 
moral business. 

I concede that there are often immoral 
influences connected with a useful and moral 
business; but the prevailing tendency and 
influence in any useful business tend to- 
ward morality. Sometimes a useful busi- 
ness is conducted in a dishonest way and 
upon dishonest motives; then the whole 
business is dishonest and immoral, for which 
the proprietor may be punished and his busi- 
ness broken up. 

I have in mind men who engaged in busi- 
ness as real estate brokers, which is a legiti- 
mate and moral vocation, but they conducted 
it in a fraudulent and illegal way, on account 
of which they are now paying the penalty 
in the State prison, and their business is 
broken up and their ill-gotten gains restored 
to their victim. Such transactions cast no 



1/6 Moral Law and Civil Law 

taint of illegality or odium upon the legiti- 
mate business of real estate brokerage. I 
have known gamblers voluntarily to restore 
ill-gotten gains and perform deeds of charity 
and kindness ; but that does not make gam- 
bling the less unlawful. 

In the saloon business a sale and purchase 
of intoxicating liquors may be made that 
would not be immoral on either side ; more 
than that, a sale and purchase of intoxicating 
liquors may be made in a saloon Avhere the 
transaction would be highly proper on both 
sides — in case of an emergency. 

But no man undertakes the saloon busi- 
ness for the purpose of selling to persons 
only, who would not in any way be injured, 
or who would be better for buying it. 

I ask any candid man to contemplate the 
business of the best possibly conducted 
saloon for one busy hour and answ^er to his 
own judgment what is the prevailing tend- 
ency of that business in that saloon ? 

But the question is not to be determined 
by contemplating the best nor the worst con- 
ducted saloon. It is the general tendency 
of the saloon business that must be taken. 

There were masters who treated their 
slaves kindly and made for the slaves better 



Parts of the Same Thing. 177 

conditions than they have made for them- 
selves since they were free. 

The great question of the right or -wrong 
of slavery was not determined by taking the 
best and worst conditions. The general char- 
acter, tendency, and effect of slavery was 
bad, and therefore slavery had to be abol- 
ished. 

The settled rule of law is, that if the 
general character, tendency, and effect of 
any business is against the public morals, it 
cannot have a legal standing. I have said 
that the general character, tendency, and 
effect of the saloon business are not like the 
general character, tendency, and effects of 
any business which the law has ever recog- 
nized as useful and moral. 

I now call attention to the fact that the 
general character, tendency, and effect of 
the saloon business are like the general 
character, tendency, and effect of every 
business that the law^ has recognized as im- 
moral and illegal. 

If the slavery system and the saloon 
system in the United States are laid down 
side by side and measured, put into the 
scales and Aveighed, analyzed, the good and 
bad elements separated and noted, their 



178 Moral Law and Civil Law 

respective effects upon the living and their 
posterity, every component element in each 
set down, and the real character, tendency, 
and effect carefully considered, the institu- 
tion of human slavery will have the advan- 
tage in the result. Our government arose 
in its might and destroyed the institution of 
slavery because it incited rebellion. 

The first rebellion against our govern- 
ment was the whisky rebellion of 1794, 
when the United States government was 
only five years old, and the business has 
been in rebellion more or less openly ever 
since against every government wherever it 
exists. 

Make a like test of the saloon business, as 
made with it and slavery, with the lottery 
business, and the latter will come out of such 
a test with an appearance of respectability as 
contrasted with the former. The people of 
most States put a provision in their Consti- 
tution forbidding lotteries, courts have re- 
corded against them their condemnation, the 
President of the United States government 
and Congress took speedy action to prevent 
their dire consequences, and they have been 
driven beyond the border of our nation. 

Make a like comparative test of the saloon 



Parts of the Same Thing. • 179 

business with prize fighting, and the result 
will be decidedly in favor of the latter in 
respectability and public safety. 

The hidianapolis Journal^ speaking of the 
evil of the saloon, said, The open saloon 
is the universal public enemy." 

The saloon business is alike in quality to 
every other adjudicated and well-known im- 
moral enterprise, only the saloon business 
has the greatest proportion in its compo- 
sition of immorality and danger. It is 
an axiom in geometry, that things which 
are equal to the same thing are equal to 
each other." 

I quote what the United States Supreme 
Court says in the case of Phalen vs. Virginia, 
8 How., 163, 168, on the lottery business, as 
follows : ' ' Experience has shown that the 
common forms of gambling are compara- 
tively innocuous when placed in contrast 
with the widespread pestilence of lotteries. 
The former are confined to a few persons 
and places, but the latter infests the whole 
community ; it enters every dwelling ; it 
reaches every clavSS ; it preys upon the hard 
earnings of the poor ; and it plunders the 
ignorant and the simple." 

Here I quote what the same court said in 



i8o . Moral Law and Civil Law 

the case of Thurlow vs. Commonwealth of 
Massachusetts, etc., 5 How., 504, decided 
in 1847, follows: ''It is not necessary for 
the sake of justifying the State legislation 
now under consideration to array the ap- 
palling statistics of misery, pauperism, and 
crime which have their origin in the use 
and abuse of ardent spirits." 

Again, the same court, in the case of 
Crowly vs. Christensen, 137 U. S., 86, de- 
cided in 1 89 1 upon the saloon business as 
follows : ' ' By the general concurrence of 
opinion of every civilized and Christian 
community there are few sources of crime 
and misery to society equal to the dram- 
shop, where intoxicating liquors in small 
quantities to be drunk at the time are sold 
indiscriminately to all parties applying. 
The statistics of every State show a greater 
amount of crime and misery attributable 
to the use of ardent spirits obtained in 
these retail liquor saloons than to any other 
source." 

Courts and Legislatures have declared spe- 
cifically, and the whole people acquiesce, that 
the lottery business is an immoral business, 
and therefore unlawful per se, and cannot be 
made lawful by any power or action. And 



Parts of the Same Thing. i8i 

the character, tendency, and effect of the 
lottery business are given so that we know 
how to identify an immoral and unlawful 
business by legal tests. 

Now I call attention to the declaration of 
the highest judicial tribunal in the land as 
it states the result of its judicial conclusions 
concerning the saloon business in the lan- 
guage just quoted. 

I repeat the last sentence of the last quota- 
tion with my own emphasis for the purpose 
of letting it burn its way to the core of the 
question under consideration : ' * The sta- 
tistics of every State show 2, greater amount of 
crime and misery attributable to the use of ar- 
dent spirits obtained in these retail liquor 
saloons than to any other source^ 

This being settled, that any business that 
produces or tends to produce misery or 
crime is immoral and unlawful, it follows 
that the business that produces the most 
misery and crime is the most immoral and 
the most unlawful. Therefore, as ''the 
statistics of every State show a greater 
amount of crime and misery attributable to 
the use of ardent spirits obtained in these 
retail liquor saloons than to any other 
source," the saloon business is the most im- 



1 82 Moral Law and Civil Law 

moral and most unlawful business known to 
society. 

As I have said, some good things could 
be said for slavery, for the lottery business, 
and even for prize fighting. It might be said 
that the latter encourages physical develop- 
ment by showing what can be accomplished 
in that way and how it can be done. 

Not one good thing, however, can be said 
for the saloon business. It is debasing to 
the proprietor and his family, a stain upon 
the reputation of his children ; its influence 
is dangerous to the best person who patron- 
izes it, causes untold agony to the weak 
victims and their families, and is a upas 
tree in the community. 

The only difference in saloons is in de- 
gree, not in quality. What can be done to 
meet this emergency, to relieve society from 
the ravages of this crime and misery-pro- 
ducmg business? 

" For every evil under the sun 
There is a remedy, or there is none. 
If there is one, try to find it ; 
If there is none, never mind it." 

I do not want to be misunderstood. I am 
not considering the question of total absti- 
nence, nor the prudent use of intoxicating 



Parts of the Same Thing. 183 

liquors, nor the question of hard or soft 
liquors. The only question I am consider- 
ing is the saloon, the place of resort, the 
public institution, where inducements and 
invitations are held out for persons to go 
and buy and drink intoxicating liquors. It 
is this place, this institution, I am talking 
about. 

The business is inherently immoral. If 
the court had not settled this question, every 
intelligent man could settle it from his own 
knowledge. An honest man will be candid 
and considerate with any important ques- 
tion. 

The United States Supreme Court says, 
* ' This is the greatest source of misery and 
crime." Then it is the greatest matter of 
public concern. 

Lottery, gambling, prize fighting, prosti- 
tution, and all other immoral business enter- 
prises of like character cannot be licensed by 
law, because of their immorality. For the 
same reason any law that undertakes to 
license saloons is void on legal principles 
well settled, and must be so declared by the 
courts. 

We have reached such a state of mental 
and moral development of public sentiment 



184 Moral Law and Civil Law 



and corresponding development in compre- 
hension of legal principles that this busi- 
ness, this institution, this system, if never 
before, has become unlawful and a menace 
to public welfare. 

License systems for lotteries and license 
systems for gambling have been declared 
void by the courts. 

Slavery in England was destroyed by 
decision of the King's Bench. Slavery in 
the United States was abolished by the 
proclamation of the chief executive. 

Courts can and must perform the duty im- 
posed upon them when the question comes 
before them, as it will do, and declare any 
law which tmdertakes to provide a license 
system for saloons void. 

As this business is the same in character 
as lotteries, gambling, prize fighting, and 
the hundreds of other offenses, it must 
be put under the same condemnation of 
law. 

Lord Chancellor Cottingham of England 
a few years ago, in the case of Taylor vs. 
Salman, 4 Mylne & C, 141, declared the law 
of England as follows : ' ' That it is the duty 
of courts of equity, and the same is true of 
all courts and of all institutions, to adapt its 



Parts of the Same Thing. 185 



practice and course of proceedings, as far as 
possible, to the existing state of society, and 
to apply its jurisdiction to all these new 
cases which, from the progress daily mak- 
ing in the affairs of men, must continually 
arise, and not, from too strict an adherence 
to forms and rules established under very 
different circumstances, decline to adminis- 
ter justice and to enforce rights for which 
there is no other remedy." 

Judge Redfield, in his work on railroads, 
Vol. II, page 366, quotes this language of 
Chancellor Cottingham, and says that the 
rule therein announced by him ''is cer- 
tainly worthy of one of the ablest, wisest, 
and best judges that ever administered the 
chancery law of England or America." 

The Supreme Court of Indiana, in the 
case of the Columbia Athletic Club vs. The 
vState, 40 N.E., 914, a decision rendered so 
recently that it has not yet been reported, 
quotes and approves the declaration of 
Lord Cottingham and Judge Redfield's 
comments thereon. 

After which our court uses the follow- 
ing language : ' ' The Constitution puts its 
special bans upon lotteries, duels, and all 
infamous crimes; while at the same time 



1 86 Moral Law and Civil Law 

it provides for the raoral and intellectual 
improvement of the people. A statute 
which should attempt to authorize prize 
fighting would most certainly be opposed 
to the spirit of the Constitution, and indeed 
that of the law itself, long since defined to 
be ' a rule of civil conduct prescribed by 
the supreme power of a State, command- 
ing what is right and prohibiting what is 
wrong.' It is a well-settled rule of law 
that when the reason for a law ceases the 
law itself ceases." 

But it is claimed by some defenders of 
the saloon system that if it were not for 
that system anyone and everyone could 
conduct the saloon business without restric- 
tions. 

Upon this very point when the question 
was in issue the Supreme Court of the 
United States, in the case of Crowly vs. 
Christensen 137 U. S., 86, said: ''There 
is no inherent right in a citizen to thus sell 
intoxicating liquors by retail. It is not the 
privilege of a citizen of the State or of the 
United States." 

I quote from Wood's Law of Nuisance, 
sec. 24: ''The experience of all man- 
kind condemns all occupations that tamper 



Parts of the Same Thing. 187 

with the public morals, tend to idleness, 
and promotive of evil manners, and any- 
thing- that produces such results finds no 
encouragement from the law, but is uni- 
versally regarded and condemned by it 
as a public nuisance. If it comes within 
the rules that have been established ty 
the courts, and such have been dictated 
by the highest wisdom and soundest public 
policy, and is productive of all the ill re- 
sults that characterize these wrongs, it is 
a public nuisance, and will be punished as 
such." 

If the authority and protection given by 
the license law were withdrawn from the 
saloons in Indiana not one of them could 
stand against an arraignment as a nuisance. 
I could cite legal authority in this line 
sufficient to make a large volume, but deem 
this ample support to the two propositions 
which I link together: (i) That no man has 
an inherent right, if there were no law upon 
the subject, to sell intoxicating liquors by 
retail; in other words, to keep a saloon. 
(2) That the saloon business comes clearly 
under the definition of a nuisance if it were 
not protected by the license law. 

The act of the Indiana Legislature, pro- 



1 88 Moral Law and Civil Law 

viding that a license may be granted for 
saloons in consideration of the license fee, 
is clearly ' ' bargaining away the public mor- 
als and public peace," which courts have 
thoroughly settled cannot be lawfully done. 

In every instance where courts have used 
this language — which have been no less than 
four times by the Supreme Court of the 
United States, and by many State Supreme 
Courts, among which is our own court — it 
has been used with reference to license 
systems, where a license is granted for a fee. 

I am told that the document issued to 
the saloon keeper is not a grant or privi- 
lege, but is only a regulation and restric- 
tion. The document is called license ; it 
calls itself a license ; it says that the grantee 
" is hereby licensed." It is a license ; it is 
a grant of privilege. Much protection to 
the public is claimed on account of the 
regulations and restrictions in the saloon 
license system. 

Regulations and Restrictions. 

There are regulations and restrictions in 
the preachers' license system adopted by 
Churches. Every, man cannot get such a 
license. 



Parts of the Same Thing. 189 

There are regulations and restrictions in 
the teachers' license system. Many persons 
cannot get a license to teach. 

There are regulations and restrictions in 
the marriage license law. Idiots and per- 
sons within a certain degree of kinship 
cannot marry, and there are other serious 
restrictions in the system. 

I call your attention and ask your careful 
consideration to the purpose of these regu- 
lations and restrictions in any license 
system. They are for the benefit of the 
system, for its protection and preservation. 

A license system without regulations and 
restrictions would amount to nothing. The 
stronger the regulations and restrictions 
the better for the protection of the system. 
It would be wholly inconsistent to establish 
a license system and then break it down 
with regulations and restrictions. When- 
ever restrictions go to the extent of destroy- 
ing the business license, then they are not 
restrictions, but prohibitions, and are void 
if the license system is valid. 

The Purpose of License. 

The purpose of any license system is to 
protect and promote the enterprise licensed. 
13 



190 Moral Law and Civil Law 

Whenever the State desires to take under 
its special care and protection, and there- 
by promote, any business or enterprise, 
the best system ever devised or adopted 
to accomplish the end is the license sys- 
tem. It is a well-known fact that the 
doctors of Indiana, after long years of dis- 
cussion and careful consideration, caused a 
bill to be carefully prepared, establishing 
a license system for their business, and 
by an organized effort secured an enact- 
ment of the bill by the Legislature of 
Indiana. And they stand by it with great 
energy. It is also a well-known fact that 
the saloon keepers and liquor dealers of 
Indiana caused to be prepared the pres- 
ent saloon license law, and made a con- 
solidated and vigorous effort whereby they 
secured its enactment by the Legislature of 
Indiana; and they stand by their system 
with an energy that amounts to despera- 
tion. 

To establish in your minds the fact that 
the principles upon which the saloon license 
and doctors' license law, as illustrative of all 
license laws, are the same, I quote from the 
first sections of each of the two systems 
named. 



Parts of the Same Thing. 191 



Saloon License Law. 
' ' Be it enacted by the General Assembly 
of the State of Indiana that it shall be 
unlawful for a person, directly or indirectly, 
to sell, barter, or give away for any purpose 
of gain, any spirituous, vinous, or malt 
liquors in less quantities than a quart at a 
time, without first procuring from the 
Board of Commissioners of the county in 
which said liquor is to be sold a license as 
hereinafter provided." 

Doctors' License Law. 
' ' Be it enacted by the General Assembly 
of the State of Indiana that it shall be un- 
lawful for any person to practice medicine, 
surgery, ... in this State without first 
obtaining a license to do so as hereinafter 
provided." 

Upon any analysis of the purpose, princi- 
ple, system, or results, the saloon license is 
based upon the same theory and is treated 
exactly the same in all respects as any and 
every other licensed enterprise. The en- 
thusiast for any of the systems named, or 
any other licensed system, may make the 
showing for his favorite as strong as he can 
in the light of facts, and when he has fin- 



192 Moral Law and Civil Law 

ished and shown the promotion and protec- 
tion given by the law to the enterprise 
licensed, then the liquor dealer can show 
that there has been none of these systems 
that has done more for which to be praised 
by its beneficiary for prosperity and promo- 
tion than has the saloon license system. 
Whatever people may have heretofore be- 
lieved, whatever they may believe now, 
the rugged fact looks them in the face, 
nevertheless, that every license system is 
intended for the purpose of promoting and 
protecting the business licensed, and does 
result in promoting and protecting the 
business; and no business has been more 
highly favored in this regard than the 
liquor traffic, and no business under a 
license system has grown and prospered in 
wealth and influence more than this deadly 
business. 

It will not do to say that we license the 
saloons for the purpose of discouraging and 
breaking up the saloon business, nor that 
we license the sale of intoxicating liquors 
to be drunk in saloons to discouras^e and 
diminish the drinking of intoxicating 
liquors. 

The Church believes in the promotion of 



Parts of the Same Thing. 193 

the Gospel and in preaching. Therefore it 
licenses ministers. 

The State believes in education and the 
business of teaching. Therefore it licenses 
school-teachers. 

The State believes in marriage. There- 
fore it licenses marriage. 

The State believes in the business of 
practicing medicine and surgery. There- 
fore it licenses doctors. 

Whatever people may heretofore have 
thought, and whatever they may now think, 
they are held to the result of what they do, 
when the result is well known to them, as 
the true interpretation of their intention. 

When the State of Indiana licenses the 
saloon business it must be held by that act 
to believe in the saloon business. 

When I speak of the Church I mean the 
people in the Church. 

The man who votes in the Church in 
favor of licensing ministers does so because 
he believes in the ministry. 

When I speak of the State I refer to the 
people composing the State. 

While the people of the State maintain a 
saloon license syvStem they cannot say that 
they do ?iot believe in the saloon business. 



194 Moral Law and Civil Law 

Not under the Ban of the Law. 

I am told that the regulations and restric- 
tions in the saloon license system put the 
saloon business under the ban of the law 
and in disgrace. 

But do the regulations and restrictions 
of the preachers' license system put the 
business of preaching the Gospel under the 
ban of the Church and in disgrace? 

Do the regulations and restrictions of the 
teachers' license system put that system 
under the ban of the law and in disgrace ? 

Do the regulations and restrictions of 
the marriage license put that institution 
under the ban of the law and in disgrace ? 

The regulations and restrictions in each 
of these systems is upon the same principle, 
has exactly the same effect, treats the busi- 
ness in the same light. 

The regulations and restrictions in the 
saloon license system no more puts that 
business under the ban of the law and in 
disgrace than is marriage brought under 
disgrace by the license, regulations, and 
restrictions concerning it. 

The regulations and restrictions in the 
saloon license system are the guardian 
angels that hover about the system for the 



Parts of the Same Thing. 195 

same purpose that they guard any other 
system. 

There might be schools, school-teachers, 
doctors, preachers, and marriage, and all 
these did exist before the license system ; 
but there could be no saloons without a 
license. 

Without this document the man who 
established a saloon would be subject to 
punishment for every drink he sold. With 
this document he is guaranteed the protec- 
tion of the State in his business. Thus, 
the office of this document is to protect and 
enable him to conduct the saloon business. 
A saloon without a license system and a 
license for its protection would be an un- 
lawful institution, because of the character 
of the business itself. No man has the 
right to conduct the saloon business with- 
out the authority which such a license con- 
fers upon him. 

Let it be borne in mind that I am not 
lecturing on temperance, nor trying to be 
sentimental, but I am attempting to apply 
legal principles as old as the hills and com- 
mon sense rules to a case in hand. 

No question will be raised by any lawyer 
upon the proposition that the Legislature 



196 Moral Law and Civil Law 



of the State may provide by law for li- 
cense, with regulations and restrictions for 
any business that is in the interest of the 
public. 

I affirm with the utmost confidence that no 
act of the Legislature that attempts to license 
or regulate and restrict any business that is 
immoral, or that tends to the promotion and 
encouragement of immorality, can be valid. 
The Supreme Court of the United States, 
the Supreme Court of Indiana, and the 
Supreme Courts of other States have, in 
legal effect and contemplation, held that 
the saloon business is an immoral business. 
If it is it cannot be legally licensed. The 
saloon business must be considered upon its 
character, tendencies, and effects as seen 
and comprehended to-day, not as they 
were seen and comprehended one hundred, 
or even twenty-five, years ago. 

Let me make myself clearly understood 
upon this question. I concede that many 
times the higher courts have decided that 
Legislatures have the power to license thesale 
of intoxicating liquors, and I fully concede 
that the Legislatures have such power for 
proper purposes and under proper restric- 
tions and regulations. The Supreme Court 



Parts of the Same Thing. 197 

of the United States defines this legislative 
power in the following language : ' * As it 
is a business attended with danger to the 
community it may be entirely prohibited 
or be permitted under such conditions as will 
limit to the utmost its evils." This lan- 
guage of the highest court lays down the 
principle of law involved in this question. 

My application of the principle to the case 
in hand is that, as the saloon business does 
not limat nor lessen, but encourages and aug- 
ments the evils which arise from the sale 
of liquors ; as the history of one hundred 
years thoroughly establishes that the saloon 
business, with its places of resort, is the 
worst and most dangerous system for the 
sale of liquors that could possibly be pro- 
vided; as the saloon business is not nec- 
essarily connected with the sale of liquor, 
as the sale of intoxicating liquors might be 
provided for, for all necessary purposes, 
without connection with the saloon busi- 
ness, or any place of resort, for the con- 
venience and purpose of drinking the same, 
therefore the Legislature does not have the 
power to license the saloon, the dangerous 
and evil resort. 

This I claim to be the correct position, 



198 Moral Law and Civil Law 

even if the question of morality were not 
involved in the case and it stood upon the 
questions of public health and public 
safety. 

A territorial government was established 
for the Northwestern Territory in 1787. 
That Territory covered the region north of 
the Ohio River, east of the Mississippi River, 
and embraced what are now five States. 
The legislative branch of the government 
consisted of the governor and three judges. 
The very first act of the legislative body 
was a law providing a license system for 
saloons. That was more than one hundred 
years ago. I hold up before you that 
license act beside the present saloon license 
system enacted by the Indiana Legislature 
in 1875, prepared and enacted upon the 
demand and to the satisfaction of the liquor 
interests of Indiana, and call your attention 
to the fact that the difference between 
these two acts is of immaterial and of 
trifling importance. In many respects they 
are identical, word for word. For one 
hundred years, except about four years, a 
license system has ruled over the soil of 
what is now Indiana. One hundred years 
is long enough to test any system of legisla- 



Parts of the Same Thing. 199 

tion. The experience and observation of 
men for the last hundred years, the laws of 
inheritance, the disposition of property by 
will, the rights of married women, the 
rights and uses of property, have under- 
gone great changes. A public system 
of education has been devised, business 
enterprises and inventive genius have 
stimulated thought into marvelous activity. 
The dense forests and wild prairies have 
been converted into fruitful fields, prosper- 
ous homes, and great cities. Conditions, 
social and political, have undergone great 
changes. The rights of State, of men and 
property, have been better defined. A 
whole race has been set free. Legislation 
and judicial decisions have done much to 
promote and protect fair dealing in busi- 
ness and the suppression of all phases of 
vice and fraud ; a lottery system that was 
so highly regarded long after this saloon 
system was adopted that it was legally 
connected with education in the Vincennes 
University, and in the construction of 
churches, and even public buildings in the 
capital city of the nation, has long since 
been declared a crime, and suppressed in 
Indiana and in all other States. Old theories 



200 Moral Law and Civil Law 

and systems of legislation long ago fled 
before the marching columns of our ad- 
vancing civilization. New theories have 
been tested, developed, and abandoned. 
But a license saloon system has survived 
them all, without material change, in this 
one hundred years of progress in all things 
else. The saloon license law of Indiana 
remains to-day substantially the same as 
the saloon license system for the North- 
western Territory, adopted more than one 
hundred years ago. After one hundred 
years of trial of this measure the highest 
judicial tribunal of this nation declares 
that : 

' ' The statistics of every State show a 
greater amount of crime and misery attrib- 
utable to the use of ardent spirits obtained 
in these retail liquor saloons than to any 
other source." 

The moral and Christian sentiment of 
the whole world cries out against it. And 
yet this worst of all evils and institutions 
remains and retains its foothold. These 
saloons that were trifling in their influence 
and power a century ago have, under the 
fostering care of this vicious system, grown 
so great in wealth and power that they 



Parts of the Same Thing. 201 

defy the laws we have and the government 
under which they exist, and boldly an- 
nounce that the laws cannot be enforced 
against them, and sneeringly defy the in- 
telligent and civilized sentiment of the 
nation. 

It seems to me that under the enlight- 
enment and development of civilization and 
education the most surprising thing pre- 
sented to our view is the continuance and 
prosperity of this greatest crime and misery 
producing system. That of all the theories 
and systems of legislation upon any sub- 
ject the worst and most destructive should 
survive with us more than one hundred 
years is beyond comprehension. I arraign 
this system before the good citizens of this 
State and the whole nation, with its one 
hundred years of record and history, every 
page of which is stained with blood, and 
which is condemned from every source 
worthy of consideration, and charge it with 
every crime known to man, and deny that 
it has one redeeming trait. The only plea 
offered in its behalf is one of confession 
and avoidance, admitting that it is an evil, 
but claiming that it is a necessary evil. I 
demur to this plea, upon the ground that 



202 Moral Law and Civil Law 

there never was and never can be, founded 
upon any legal principle, an evil that is neces- 
sary. If an institution is evil both princi- 
ple and the whole power of the law must be 
arrayed against it. 

Some legal propositions are thoroughly 
settled by the harmonious decisions of the 
highest courts : 

1. That morality, as contemplated in 
the Constitution and laws of Indiana, is the 
morality that is contemplated in the Chris- 
tian religion. 

2. That the Constitution of Indiana de- 
mands the Legislature to promote and pro- 
tect morality. 

3. That the saloon business is an im- 
moral business. 

Hence the inevitable conclusion is that 
licensing the saloon business is licensing 
immorality and is bargaining away the 
public morals and the public safety. 

I admit that Supreme Courts of many 
States have held that this is a lawful busi- 
ness ; but I stand unawed in the presence of 
these courts and declare that an immoral 
business cannot be a lawful business, how- 
ever apparently solemn may be the act of 
the Legislature attempting to authorize the 



Parts of the Same Thing. 203 

same, and that the saloon business is more 
immoral and more unlawful than the lot- 
tery business. The Legislature may author- 
ize, license, and protect what is right, and in 
the interest and in harmony with the public 
welfare, but it may not license an immoral 
or evil business. I am not attempting to 
avoid or shrink from decisions of our Su- 
preme Court in Indiana, which have specif- 
ically declared that the saloon business is a 
lawful business and that the license sys- 
tem is valid. Let me recognize and admit 
these decisions fully, and all there is in 
them, as precedents upon this question. 

The courts of England had held, and the 
public had acquiesced for more than fifty 
years, that slavery was a legal institution ; 
but I have given you the facts and history 
of the case .,in which Lord Chief Justice 
Mansfield, more than one hundred years 
ago, speaking for the King's Bench and to 
the civilized world, utterly disregarding 
all precedents, uttered the Christian and 
civilized sentiments of the people, as these 
sentiments had grown to be, that such an 
inhuman and immoral institution could 
not be lawful. 

I have called your attention to the decision 



204 Moral Law and Civil Law 

of the Supreme Court of Indiana in 1879, 
whicli declared hat a lottery system had be- 
come a part of the chartered and vested 
rights of the Vincennes University as a 
perpetual right, and based that decision 
upon numerous precedents ; but the same 
high court, to its praise and honor let it be 
said, at a later day, looking again at the 
question with mote light, overruled its own 
decision, disregarded all the precedents 
upon which it was based, and declared as 
the law of Indiana that the lottery busi- 
ness could not be given legal existence nor 
vested rights in our State, because of its 
immorality. 

I have called your attention to the fact 
that, though slavery had been recognized 
by the Supreme Court of the United States, 
and acquiesced in by the people of the na- 
tion as a lawful institution for more than 
two hundred and fifty years, yet there came 
a day when it was necessary to destroy and 
abolish that institution, though it existed 
only as a domestic institution in individual 
States, in order to save the government ; and 
that great end was accomplished by a procla- 
mation that stands as the greatest act of any 
man in the whole history of the nation. 



Parts of the Same Thing. 205 

Whatever may be the precedents, however 
much prejudice, vast wealth, and political 
considerations may have been able to claim 
and accomplish, the demand of civilization, 
the demand of the public welfare, and de- 
mand of sound legal principles, from every 
source of public safety comes the cease- 
less demand that immorality shall not be 
licensed nor promoted; ''that the greatest 
source of misery and crime " shall not be 
protected, but must be destroyed. 

The Supreme Court of Indiana, in the 
case of Haggart vs. Stehlin, illustrated to 
the people its power and courage, its high 
integrity and regard for legal principles and 
sound morality, by a great advance in its 
declaration of the law as founded upon mo- 
rality. Whatever that high court may have 
held at different times in years gone by, 
there is a day coming, and I believe near at 
hand, when it will strike a blow, as did the 
King's Bench in England at slavery, and as 
our own Supreme Court did at the lottery 
business, and destroy the liceUvSe saloon sys- 
tem of our State, as will other courts of 
other States. 

Indiana boasts of her institutions of learn- 
ing, churches, patriotic devotion, and the 
14 



2o6 Moral Law and Civil Law 

prowess of her sons on the field of battle. 
She takes just pride in her record for loyalty. 
Let me call attention to the fact that loyalty 
to the State, to the Union and government, 
requires that morality shall be maintained 
with the same zeal that maintained our 
cause against George III and against dis- 
union. 

There is no disloyalty equal to the partici- 
pation in, or consent on the part of the 
people that any system of immorality shall 
have a camping ground upon our soil. It is 
disloyalty and treachery to the government 
to support any man for official position who 
is dominated by saloon influence. 

We have in Indiana many institutions 
established and maintained at public ex- 
pense, such as Deaf and Dumb Asylum, 
Blind Asylum, Insane Hospital, State Uni- 
versity, Normal School, Reform School for 
Boys, and a School for the Feeble-minded. 

There is one other institution for which 
there is a crying need, and that is a School 
for the Feeble-hearted. 

A State and national organization has 
been perfected for the special purpose of 
maintaining and protecting the saloon busi- 
ness. This institution is now flourishing in 



Parts of the Same Thing. 207 

Indiana. It announces its purpose, among 
other things, to control legislation. The 
meetings of this organization are not 
opened and closed with prayer. It does 
not depend on prayer. It defies God and 
man. It has tremendous success and power 
to overawe and intimidate ambitious poli- 
ticians, legislators, and many officers whose 
duty it is to enforce the law. Its success 
lies in the fact that it is courageous, desper- 
ately in earnest, and uses its money and in- 
fluence without stint. Whenever the oppo- 
nents of this business become as courageous 
and consistent as the men who are engaged 
in this btisiness, then the victory for sound 
principles, law, and justice will be won. 

Much is made, and must be, of the office 
of love in accomplishing the reformation of 
individuals. But love is misapplied if exer- 
cised on behalf of immorality or lawless- 
ness. These things are not to be loved, 
but are to be hated. Love is for humanity, 
to be exercised in its behalf and against all 
evil influences and institutions. Abraham 
Lincoln loved the government of the United 
States when he put two million men in the 
field, clothed in military uniform, armed and 
supplied with munitions and deadly weapons, 



2o8 Moral Law and Civil Law 

to put down a rebellion by bloody war. 
General Grant loved his government and 
the flag when he stretched his long lines of 
blue in the wilderness, and fought it out on 
that line with shot and shell and minie ball, 
with fixed bayonets and flashing sword, until 
he established the supremacy of law. 

It is both just to the Union soldiers and 
magnanimous to the foes they opposed to 
say that the late civil war would have been 
short-lived if it had not been that General 
Robert E. Lee and the armies he com- 
manded loved a cause which moved men to 
stand in the jaws of death undaunted. 

If a man loves the right he hates the 
wrong. If a man loves God he hates Satan, 
and loves God in just the same degree that 
he hates Satan. 

If we love the families of the drunkard 
and the drunkard himself, and seek their 
welfare, we hate the saloon institution as 
we hate Satan. We make much of the 
unbounded love of Christ, and this cannot 
be overdone. The great purpose of his life 
and ministry was to teach this love ; but 
we fail to comprehend the whole character 
of the good Master if we study only one side 
of it. 



Parts of the Same Thing. 209 

He went one day into the temple and saw- 
there those who sold oxen and sheep and 
doves, and the money changers. These peo- 
ple had been licensed by the high priest for a 
large license fee to conduct these enterprises 
in the temple. When He who loves as no 
man ever can love saw this pollution of the 
temple and the wickedness of that license 
system, with fire in his eye and thongs in 
his hand he drove those people out of the 
temple. I imagine I can see the panic that 
reigned in that sacred inclosure as the gates 
flew open and the animals and men rushed 
pell-mell into the streets to escape pursuit 
and wrath. 

It is high time that Christian civilization, 
as it contemplates the wickedness, devasta- 
tion, and ruin produced by a licensed saloon 
system, should rise in righteous indignation, 
and with fire in its eye drive this business 
and the system out of our State. And the 
same duty and the same demand rest upon 
the citizens of every State in the Union. 
There are other very important matters of 
public interest which deeply concern good 
morals. These require and must have our 
attention ; but the saloons and liquor busi- 
ness have combined, and stand alone as 



2IO Moral Law and Civil Law 

organized evils and immoral influences. 
This combination appears publicly in the 
field, waving its banner, with its lines 
formed, has issued its declaration of war 
and announced its purpose to maintain, at 
all hazards, the most demoralizing of all 
evil influences and the present system of 
public consent and lawlessness. This or- 
ganization exhibits its muster roll, shows 
its force, calls attention to its bank account. 
This organization must be encountered and 
overcome by manly and patriotic effort. I 
am not urging nor expecting that all these 
great undertakings shall be accomplished in 
one day, or that any one of them can be 
disposed of at once; but the demand and 
duty upon us are that every day shall 
record an honest day's work toward the 
accomplishment of the ends sought. There 
must be steps taken, and there can be only 
one step taken at a time, but every step 
should be an advance. Earnest, candid 
men have no time for equivocation, evasion, 
or subterfuge. 

The Jordan takes its rise from the melt- 
ing snows of Mount Hermon, is augmented 
by the pure streams and rivulets that empty 
into it. It flows through what was once the 



Parts of the Same Thing. 211 

richest land and the most beautiful valley in 
the whole world. Its waters are clear as 
crystal, delicious and refreshing to the 
taste ; but it empties into the Dead Sea, in 
the waters of which there is no living thing, 
and on the shores of which nothing can grow 
save the apples of Sodom. So the temper- 
ance movement takes its rise from the melt- 
ing sympathy of human hearts ; on its course 
receives and is augmented by the prayers, 
energy, and contributions that flow into it 
through every valley and from every pure 
fountain. But we have allowed the enemy 
to dig the channel and divert the course 
until this pure, clear, refreshing, life-giving 
stream has been emptying into the Dead 
Sea of political corruption, which is filled 
with dead men's bones and colored with 
human blood. The flow cannot and must 
not be stopped; but the natural channel 
must be opened, so this stream shall empty 
into the great ocean of God's love. 

I looked on the cyclorama of Gettysburg 
— the greatest picture of a real battle that 
was ever painted. That is the picture of 
war with all its horrors. After having been 
enrapt and held to the most intense con- 
templation of that bloody scene, I turned 



212 Moral Law and Civil Law. 

away and said to myself, Can it be possible 
that a people speaking- the same language, 
citizens of the same government, bound by 
the ties of consanguinity, revering the same 
history and ancestry, can be brought into 
such a struggle as this? That battle ought 
never to have been fought, and never would 
have been fought if the citizens of this re- 
public had performed their patriotic duty 
in time of peace, and had not suffered them- 
selves to be misled by mere partisans into 
delusions and efforts to maintain an im- 
moral and inhuman institution. 

Shall we be swayed by prejudice, con- 
trolled by designing men, cower before the 
lawless, betray the government we claim to 
love, and leave to another generation to 
settle, by the flow of blood and awful an- 
guish, questions which we ought to settle, 
or shall we learn lessons from the past and 
avoid disaster? 

There can be no safety for any people or 
government outside of sound legal princi- 
ples. There can be no sound legal principles 
unless founded upon morality. These facts 
must not be confused, obscured, nor lost 
sight of. 

THE END. 



